The Kenya National Highways Authority (KeNHA) has lost an application seeking to escalate a Sh413 million compensation to the Supreme Court as the apex court ruled that no constitutional issues were raised in the matter, requiring their interpretation.
The five-judge bench presided by Deputy Chief Justice Philomena Mwilu dismissed KeNHA’s application stating that the appellate court affirmed the trial court’s finding that the agency lacked the basis to join the case between Five Star Agencies Ltd and National Land Commission (NLC), in the compensation dispute.
“Likewise, this court is constrained to decline admission of an appeal by a party who has filed an appeal as of right, when it did not litigate the issues in question before the superior courts below,” said Justices Mwilu, Mohammed Ibrahim, Smokin Wanjala, Isaac Lenola, and William Ouko.
The court added that they found no cogent questions of constitutional interpretation or application that arose for determination by the High Court, for them to exercise their powers and allow the second appeal.
In the dispute, Five Star Agencies said the NLC acquired part of its land in Lang’ata for the construction and upgrading of the Southern Bypass.
The firm was awarded Sh87.8 million as compensation for the portion compulsorily acquired by the NLC.
But the firm was aggrieved by the award and moved to the Environment and Land Court saying the land was undervalued and the amount was adjusted upwards to Sh413 million.
KeNHA then sought to join the case in the second appeal after Five Star Agencies sought to attach its accounts and recover the amount.
A bench of three judges of the Court of Appeal stated that the argument that KeNHA ought to have been joined in the proceedings since it was liable to pay the money, was flawed.
They said the state agency was not a necessary party as Five Star was not seeking any relief from, or against KeNHA in respect of its compulsorily acquired land.
Further, KeNHA’s presence was not necessary for the trial court to effectively and completely adjudicate upon and settle all the questions involved in the proceedings before it.
Not satisfied, KeNHA moved to the Supreme Court but through senior counsel Fred Ngatia, Five Star opposed the case saying there were no constitutional issues to be addressed by the apex court.
Mr Ngatia submitted that the case was determined by the Court of Appeal on the basis of the Government Proceedings Act, the Land Act, and the Civil Procedure Rules.
The lawyer added that KeNHA did not participate in or seek to be joined to the proceedings before the trial court in which the compensation award in respect of the compulsorily acquired suit property was enhanced from Sh87.8 million to Sh413.2 million.
Prof Albert Mumma for KeNHA said the appeal captures the constitutional provisions and principles argued by the parties, which were reflected in the decisions of the High Court and the appeal directly involves the interpretation and application of the constitution on issues of just compensation and access to court.
“Flowing from the above, we are convinced that the appellant lacks the requisite locus standi to invoke this court’s jurisdiction,” said the judges.
