Court of Appeal Shuts Down Kshs. 33.9M Yatta Dam Land Claim, Says No Proof of Forced Takeover

A three-judge bench comprising Justices Wanjiru Karanja, Kathurima M’Inoti and Francis Tuiyott upheld the decision of the High Court in Machakos, which had earlier thrown out the suit for lack of proof.

At the centre of the dispute was a five-acre parcel known as Ithanga/Gituamba/Mavoloni Block 2/205, which Mavoloni claimed had been taken over in 2009 during the construction of the dam along the Thika River.

The company argued that the land, together with developments including irrigation pipes, grading sheds, stores, security houses and pit latrines, had been submerged or rendered unusable by the project, and sought Kshs. 33,907,000 in compensation.

Tanathi Water Services Board, however, denied ever acquiring the disputed parcel, insisting that only specific portions of land were purchased through a voluntary sale agreement that had already been fully paid for.

The Board maintained that the contested Yatta Dam Land remained registered in Mavoloni’s name and was never part of the transaction.

In its determination, the Court of Appeal held that Mavoloni failed to prove that the land had been compulsorily acquired under the law. The judges emphasized that compulsory acquisition must follow a strict legal process.

“From the evidence on record, that prescribed procedure was not followed in this case, leading to the inevitable conclusion that there was no compulsory acquisition of the suit property as understood in law,” the court stated.

The court further found that the written sale agreement between the parties was the only binding document governing their relationship, and it only covered parcels specifically listed within it. It also noted that any changes to the agreement had to be done in writing and signed by both parties, which was never done for the disputed parcel.

On that basis, the judges rejected Mavoloni’s argument that it could claim compensation outside the contract.

The bench also dismissed the argument that compensation was due simply because the land allegedly fell within or was affected by the dam project.

“If it was the appellant’s case that the respondent’s dam had unlawfully interfered with the suit property giving rise to a case for compensation, the appellant ought to have properly pleaded its case as such,” the court held.

The court further found that even if the claim had been framed differently, Mavoloni still failed to provide sufficient evidence showing actual interference with the property by the Board.

Ultimately, the Court of Appeal dismissed the appeal and awarded costs to the Tanathi Water Services Board.