The Kenya National Highways Authority (KeNHA) has lost an application seeking to escalate a Sh413 million compensation to the High Court as the High Court ruled that no constitutional issues were raised in the matter, requiring interpretation.
The five-judge bench headed by Deputy Chief Justice Philomena Mwilo dismissed KeNHA’s application, saying the Court of Appeal affirmed the lower court’s finding that the agency lacked basis to join the case between Five Star Agency Ltd and the National Land Commission (NLC), in the compensation dispute .
“Similarly, this court is constrained to refuse to entertain an appeal by a party who has filed an appeal as a matter of right, when it has not litigated the issues in question before the High Courts below,” Justices Mwilu, Mohamed Ibrahim and Smokin Wanjala said. Isaac Linola and William Oko.
The court added that it did not find any convincing questions about the constitutional interpretation or application that arose for the Supreme Court to decide, in order to exercise its powers and allow the second appeal.
In the dispute, Five Star Agencies said the NLC had acquired part of its land in Langata to build and upgrade the Southern Bypass.
The company received Sh87.8 million as compensation for the portion that was forcibly acquired by NLC.
But the company felt aggrieved by the arbitration award and moved to the Environment and Lands Court, saying the land was undervalued and the amount was revised to Sh413 million.
KeNHA then sought to join the case in the second appeal after Five Star Agens sought to attach its accounts and recover the amount.
A three-judge panel of the Court of Appeal said the argument that KeNHA should have joined the proceedings because it was responsible for paying the money was flawed.
They said the government agency was not a necessary party because M5S was not seeking any relief from or against KeNHA in relation to the lands it had forcibly acquired.
Furthermore, KeNHA’s presence was not necessary for the trial court to effectively and completely adjudicate and settle all questions relating to the proceedings before it.
Dissatisfied, KeNHA moved to the Supreme Court but through senior advocate Fred Ngatia, the Five Star Movement opposed the case saying there were no constitutional issues that should be addressed by the Supreme Court.
Mr Ngatia confirmed that the Court of Appeal decided the case on the basis of the Government Procedure Code, the Land Code and the Civil Procedure Rules.
The lawyer added that KeNHA did not participate or seek to join the proceedings before the court of first instance in which the amount of compensation in respect of the forcibly acquired suit properties was enhanced from Sh87.8 million to Sh413.2 million.
Professor Albert Muma of KeNHA said the appeal embodies the constitutional provisions and principles discussed by the parties, which were reflected in the decisions of the Supreme Court, and the appeal directly involves the interpretation and application of the Constitution in issues of just compensation and access to court. .
“Based on the above, we are satisfied that the appellant lacks standing to appear before the court to invoke the jurisdiction of this court,” the judges said.
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