The High Court in Thika will hear a petition in which residents of Mutomo village in Gatundu South are challenging a plan to acquire their land compulsorily.
Justice B.M Eboso dismissed an application by the National Land Commission (NLC), seeking to bar the court from hearing the petition.
NLC had asked the court not to hear the case by the 58 petitioners, arguing it (court) had no jurisdiction to entertain the matter.
The land was to be acquired for the expansion of Mama Ngina University College, a constituent of Kenyatta University.
It was a major relief for the petitioners when the court announced that it would hear the case that has been pending before it since April.
The petitioners accused NLC of failing to follow the right procedure in acquiring the land. They declined to take part in a public participation exercise organised by NLC and instead headed to court. They claimed the lands commission failed to constitute a Land Acquisition Tribunal to hear their grievances.
The judge noted the court was alive to the fact that the Land Act gives it a mandate over disputes relating to compulsory acquisition of land in the absence of a lawfully constituted Land Acquisition Tribunal.
“The alternative dispute resolution mechanism is deemed to be unavailable until a time when it is constituted and operationalised as required by the law,” said Justice Eboso.
The judge said he would not strike out the petition, arguing a land tribunal had not been constituted when the case was filed.
Even now, the tribunal is yet to be constituted, Justice Eboso said.
The judge also faulted NLC for failing to inform the court it had not formed the tribunal to hear the disputes on the impending relocation plans.
Justice Eboso noted the tribunal is vested with primary jurisdiction to hear and determine disputes arising from compulsory land acquisition before the matter is adjudicated by the courts.
The aggrieved residents are challenging the gazette notice issued on September 27, 2021, allowing the national government to compulsory acquire privately-owned land.
They argued that the gazette notice violated the constitution and their fundamental rights since NLC never conducted public participation before the notice which is contrary to Article 10 of the constitution.
The petitioners also argued that the intended acquisition of their land was not done in the best interest of the public contrary to the Land Act which requires that a Land Acquisition Tribunal should first determine the matter by listening to the grievances of those affected.
In their reply, the respondents - NLC, Kenyatta University, and Mama Ngina University College - asked the judge to strike out the petition on grounds the court had no jurisdiction to hear it. NLC further told the court that some of the petitioners had declined to participate in the public inquiry despite being notified.
In his ruling, Justice Eboso observed that given the prevailing circumstances, the petition was properly before the court.
“Should the tribunal be constituted and operationalized before the dispute is disposed of, the court will refer the dispute to the Land Acquisition Tribunal since it is the body that is vested with primary jurisdiction to adjudicate disputes relating to compulsory land acquisition,” he ruled.
The case will be heard on September 21.
At the same time, 180 residents who had inked contracts to give up their land for the expansion of the college have accused the government of failing to compensate them on time as agreed.
The residents of Mutomo village — the rural home of President Uhuru Kenyatta — were to be paid Sh10.1 million each for a 100x100ft plot against their expectation of Sh16 million. According to NLC records, the highest amount a landowner will get is up to Sh35 million.
NLC had said it was yet to receive the cash from the Ministry of Education to make the payments.