The High Court has dismissed a petition challenging the handling of Sh2.75 billion compensation following the compulsory acquisition of land in Embakasi for the Standard Gauge Railway project.
Justice Patricia Nyaundi of the Constitutional and Human
Rights Division ruled that the dispute should have been filed before the
Environment and Land Court. She said only the ELC has jurisdiction over land ownership, title,
compulsory acquisition and compensation matters.
The decision effectively brings to an end the case of the Embakasi land which was
originally allocated to the Nairobi City Council before being allocated to the
Dupoto/Dafur Settlement Welfare Scheme.
Petitioner Francis Awino had sued Lands PS Nixon Korir and the Attorney General, with the Dupoto/Dafur Settlement Welfare Scheme, Law Society of Kenya and Directorate of Criminal Investigations listed as interested parties.
Kenya Railways Corporation compulsorily acquired part of the land for construction of the SGR.
Awino alleged that 38 acres was surrendered without
compensation, while another 55 acres sold without the authority of
scheme members.
He also alleged that Sh2.75 billion paid as compensation
was diverted to law firms and individuals, while genuine scheme members
received only nominal payments.
He wanted the High Court to declare that the
respondents had violated the Constitution and sought orders for a forensic
audit, cancellation of allegedly illegal titles and restitution.
He described the acquisition and handling of the compensation as “illegal, fraudulent, clandestine and unconstitutional”, allegations that were contested by the respondents.
The respondents and interested parties raised
preliminary objections challenging the High Court’s jurisdiction.
They argued that the petition was fundamentally a land dispute involving ownership, title, compulsory acquisition and compensation which are matters reserved for the Environment and Land Court.
Korir submitted that the High Court lacked jurisdiction over the matter.
Justice Nyaundi considered whether the petition was affected by the doctrines
of constitutional avoidance and exhaustion of alternative legal remedies.
She rejected an argument by the Attorney General
that the petition violated the subjudice rule, finding that there was insufficient
evidence to support the claim.
However, she agreed that the High Court lacked
subject-matter jurisdiction.
The judge held that the Environment and Land Court was the proper forum for determining the dispute, noting that the High Court could not assume jurisdiction assigned to another court.
"Having found that the proper forum for the determination of this dispute is the Environment and Land Court, this court cannot arrogate to itself a jurisdiction that the Constitution has withheld, nor can it reopen matters that statute and precedent have already placed within the exclusive remit of the specialised court,” she ruled.
The judge also found that Awino had not exhausted the available statutory mechanisms or demonstrated circumstances that would justify an exception.
She consequently struck out the petition.
