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ELCStruck OutNot stated in the judgment

Mathiu v National Land Commission & another (Environment and Land Petition E002 of 2025) [2025] KEELC 8128 (KLR)

Environment and Land Court
20 November 2025
3,736 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a landowner's petition because he had to first take his compensation dispute to the Land Acquisition Tribunal.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kajiado (L. Komingoi J, delivered virtually on 20th November 2025) determined a Notice of Motion dated 24th February 2025 and a Preliminary Objection dated 21st March 2025 in a petition concerning compensation for compulsory acquisition of land for the Standard Gauge Railway. The Petitioner, registered owner of parcels Kajiado/Kitengela/4494 and 4495, was awarded Kshs. 21,970,180 for 0.643 Ha under Notice of Award File No. NLC/VAL.1451 dated 27th November 2023 and paid on 6th November 2024. On 19th February 2025 the National Land Commission, through National Bank of Kenya, recalled the payment by Swift message without prior notice or reasons. The Petitioner sought conservatory orders restraining the recall and access to the acquisition documents. The Kenya Railways Corporation raised a preliminary objection that the Court lacked jurisdiction because the Petitioner had not exhausted the dispute resolution mechanisms under Sections 112 and 133C of the Land Act, Section 9 of the Fair Administrative Action Act and the Access to Information Act. The Petitioner argued the Court had jurisdiction under Article 162(2)(3) of the Constitution and Section 13 of the ELC Act, and that exhaustion was not absolute. Applying the Supreme Court's decision in Adega v Kibos Distillers on judicial abstention, and noting Section 133C(6) requires compulsory acquisition matters to go first to the Land Acquisition Tribunal, the Court upheld the Preliminary Objection, struck out the Notice of Motion and the Petition, and ordered each party to bear its own costs. The constitutional questions were reserved pending the Tribunal's determination.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Preliminary Objection dated 21st March 2025 is merited
  2. 2.Whether the Notice of Motion dated 24th February 2025 is merited and if so whether the Petitioner/Applicant should be granted the reliefs sought
  3. 3.Who should bear costs

Key legal issues

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01

Whether the Petition was properly before the ELC given the statutory dispute resolution mechanisms under the Land Act

Holding

The Petition was improperly before the Court; the dispute over recalled compensation for compulsory acquisition ought first to go to the Land Acquisition Tribunal, and the Court reserved the constitutional questions pending that determination

Reasoning

The Court accepted that Section 133C(6) of the Land Act requires matters relating to compulsory acquisition to be referred in the first instance to the Land Acquisition Tribunal, notwithstanding Section 128. Applying the Supreme Court's guidance in Kibos Distillers on judicial abstention, the Court held it should reserve the constitutional questions (such as the right to fair hearing) pending determination of the compensation issue at the right forum, the Tribunal.

p. 8
02

Whether the Petitioner had exhausted the dispute resolution mechanisms

Holding

The Petitioner had not; the mandatory avenue was the Land Acquisition Tribunal under Sections 133A and 133C of the Land Act, whose decision could then be appealed to the ELC under Section 133D

Reasoning

The Court traced the statutory scheme: inquiry and hearing of claims under Section 112, written award under Section 113, payment under Section 115, and refund procedure under Section 116. Since payment had been made and the dispute concerned its recall, the matter related to compulsory acquisition and had to be referred to the Tribunal first. The Petitioner's failure to resort to the Tribunal rendered the Petition premature and incompetent.

p. 6
03

Whether the conservatory orders sought in the Notice of Motion should issue

Holding

The Notice of Motion fell with the Petition once the Preliminary Objection was upheld

Reasoning

Having upheld the Preliminary Objection on jurisdictional/exhaustion grounds, the Court did not reach the merits of the conservatory relief. The Motion and the Petition were both struck out, and each party was ordered to bear its own costs. The Court made no finding on the prima facie case, public interest or nugatory-ness criteria canvassed in the parties' submissions.

p. 8

Legal principles established

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  • A preliminary objection should be raised on a pure question of law determinable on the face of the pleadings without ascertaining facts from evidence
  • Judicial abstention requires a court vested with jurisdiction to refrain from determining constitutional issues where appropriate legislatively mandated institutions and mechanisms exist
  • Under Section 133C(6) of the Land Act, a matter relating to compulsory acquisition of land shall in the first instance be referred to the Tribunal

Court orders

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  1. 1.The Preliminary Objection dated 21st March 2025 is upheld
  2. 2.The Notice of Motion dated 24th February 2025 and the Petition are struck out
  3. 3.Each party shall bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2) and (3) of the Constitution and Section 13 of the Environment and Land Court Act; contested via Sections 112, 133C and 133D of the Land Act (exhaustion doctrine)

Relief refused

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Conservatory order restraining the 1st and 2nd Respondents from recalling, seeking refund of or interfering with Kshs. 21,970,180 paid to the Petitioner pending hearing of the Petition

The Preliminary Objection was upheld on the ground that the Petitioner had not exhausted the statutory dispute resolution mechanism before the Land Acquisition Tribunal, and the Notice of Motion and Petition were struck out

p. 8

Costs

Each party shall bear its own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This Court, guided by the foregoing decision of the Apex Court reserves the Constitutional questions raised in the Petition such as the right to fair hearing pending the hearing and determination of the issue of compensation at the right forum which is the Land Acquisition Tribunal.
p. 8Judicial abstention and reservation of constitutional questions
I find merit in the Preliminary Objection and the same is upheld.
p. 8Upholding the preliminary objection on exhaustion
Consequently the Notice of Motion and the Petition are hereby struck out.
p. 8Final orders - striking out
Each party shall bear its own costs.
p. 8Costs
It has well settled that a Preliminary Objection should be raised on a pure question of law, which can be determined prima facie on the face of the pleadings without looking at evidence to ascertain facts.
p. 6Nature of a preliminary objection

Issues in the judgment

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minor

The compensation sum is stated inconsistently within the judgment: the Motion seeks to preserve Kshs. 21,970,180 while the Court's analysis records payment of Kshs. 21,279,180

minor

The case number of the Petition is not stated anywhere in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mathiu v National Land Commission & another (Environment and Land Petition E002 of 2025) [2025] KEELC 8128 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8128/eng@2025-11-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.