COMMISSIONER OF LANDS & another v COASTAL ACQUACULTURE LIMITED [1997] KECA 394 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that land can only be compulsorily acquired if the government notice clearly names the public body and the public purpose.
What this practically means
#Executive summary
#Key legal issues
#Validity of the gazette notice under section 6(2) of the Land Acquisition Act
The notice was defective and invalid because it neither named the public body for whom the land was acquired nor stated the public purpose; 'Tana River Delta Wetlands' is merely a geographical-cum-ecological description.
Section 6(1) requires the Minister to certify that land is required for a public body for a stated public purpose justifying the hardship of acquisition. The notice under section 6(2) must reflect the Minister's certificate so that the affected owner can fairly challenge the legality of the acquisition. Following Re Kisima Farm Ltd, the test must be satisfied on the face of the notice at the outset, not by subsequent evidence. The subsequent evidence here showed the land was for Tana and Athi Rivers Development Authority, exposing the notice as less than candid.
Jurisdiction of the inquiry chairman and valuers
Mr Mwaniki and his team lacked jurisdiction to conduct the inquiry; their acts were null and void as they were not shown to be duly authorised by the Minister, and Mwaniki himself disclaimed chairmanship by asserting the Commissioner was conducting it.
Section 2 of the Act permits the Minister to authorise any person in writing to exercise the Commissioner's powers, but no written authority was produced in the inquiry record or in court. Mwaniki's own record showed he was taking instructions from the Commissioner and the Attorney General, demonstrating lack of control and disclaimer of jurisdiction. A tribunal improperly constituted lacks jurisdiction, and its proceedings are null and void from inception; the respondent's four days of participation could not validate them.
Whether participation in the inquiry waived the right to challenge jurisdiction
No waiver: Masaka Growers v Mumpiwakoma Growers was distinguished because here the total absence of jurisdiction was apparent on the face of the proceedings.
Prohibition is a discretionary remedy and acquiescence may bar it where the defect is not apparent on the face of the proceedings, as in Mouflet v Washburn. But where, as in Farquharson v Morgan, there is a total absence of jurisdiction apparent on the face of the record, participation is no bar. Mwaniki's own disclaimer of jurisdiction made the lack of jurisdiction apparent on the face of the proceedings, so the waiver argument failed.
Role of marginal notes in statutory construction
Marginal notes, though not part of the statute in England, form part of bills in Kenya and may be used as an aid to construction.
English courts historically disregarded marginal notes because before 1850 they were added after enactment. In Kenya, marginal notes form part of the bill as presented to Parliament and have even been amended by legislation. The marginal note to section 6 ('Notice of acquisition') supports the view that the section is concerned with the publication of a notice containing the conditions for compulsory acquisition, so the affected party is made cognizant of the grounds of acquisition.
Legal principles established
#- A notice of intention to compulsorily acquire land under section 6(2) of the Land Acquisition Act must identify the public body for whom the land is acquired and the public purpose of the acquisition; a notice failing to do so is invalid and deprives the Commissioner of jurisdiction to hold the compensation inquiry.
- Statutory powers of compulsory acquisition must be strictly pursued and must appear to be so on the face of the proceedings; participation by the affected party does not cure an absence of jurisdiction.
- The existence of a right of appeal on compensation is not a bar to an order of prohibition against an inquiry conducted without jurisdiction.
- In Kenya, marginal notes form part of the bill as presented to Parliament and may be taken into account in construing a section.
Court orders
#- 1.Appeal dismissed
- 2.Order of prohibition restraining the Commissioner of Lands from continuing with the inquiry into compensation upheld
- On appeal from
- High Court of Kenya at Nairobi
- Mombasa H.C.MISC. APPLI. NO. 55 OF 1994
- Jurisdiction invoked
- Appeal from the High Court in judicial review proceedings (order of prohibition) under the Land Acquisition Act; no specific appellate provision stated in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "COMMISSIONER OF LANDS & another v COASTAL ACQUACULTURE LIMITED [1997] KECA 394 (KLR)", Case Analysis (). Civil Appeal 252 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/394/eng@1997-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.