Kenya Ports Authority v Nightshade Properties Ltd & 4 others (Civil Appeal E025 of 2021) [2023] KECA 870 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed the government must pay Nightshade Properties compensation for Lamu port land, but cancelled an extra injunction.
What this practically means
#Executive summary
#Key legal issues
#Whether the compulsory acquisition of the suit property complied with Article 40(3) of the Constitution and Part VIII of the Land Act
The proper process was followed in the unique circumstances, possession having been effected before compensation, but the acquisition remains incomplete until compensation is paid; the Appellant and NLC must compensate the 1st Respondent.
Article 40(3) permits deprivation of property for a public purpose with prompt payment of just compensation. The statutory framework for compulsory acquisition is in Part VIII of the Land Act. Here, the 1st Respondent's title had been cancelled in 2011 when the bulk acquisition of 28,139 Ha was done, and was reinstated only in 2017; the NLC gazetted the suit property for acquisition in February 2018. Section 120(2) permits possession before award in cases of urgent necessity. Non-payment of compensation does not invalidate the acquisition but leaves the process incomplete.
Whether the default order of injunction issued upon non-compliance with the mandamus was proper
The default injunction was set aside; the order of mandamus was complete in itself and capable of execution, making the default order unnecessary.
The mandamus principles require that the order command only what the party is legally bound to perform and that it be the only lawful remedy available. The ELC judge's mandamus directing the NLC to convene a Section 112 inquiry was sufficient; the 1st Respondent had recourse to execute it if the NLC defaulted. Layering a default mandatory injunction against the Appellant and 3rd Respondent over land already vested in the State for a nearly completed public project was not warranted.
Whether the costs orders against the Appellant and the 5th Respondent were justified
Costs of the appeal and the Petition were awarded against the 2nd, 3rd respondents and the Appellant, but not the 5th Respondent (National Assembly).
The Appellant, the 2nd and 3rd respondents each had specific, admitted roles in the acquisition process and should bear the costs. The 5th Respondent, whose role was legislative, was not found to have engaged in the acquisition and its cross-appeal on costs therefore succeeds.
Legal principles established
#- Possession of land may lawfully be taken before compensation in cases of urgent necessity under Section 120(2) of the Land Act, but the compulsory acquisition process remains incomplete until compensation is paid.
- An order of mandamus is complete in itself and capable of execution; no default consequential order (such as an injunction) should accompany it, since the party in whose favour it issues has recourse upon non-compliance.
- On a first appeal, the Court of Appeal must re-evaluate, reassess and reanalyze the evidence and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.
Court orders
#- 1.The order of Mandamus issued directing the 2nd respondent to convene a meeting under the provisions of Section 112 of the Land Act to determine the just compensation due to the 1st respondent within 45 days from the date hereof is confirmed
- 2.The 2nd respondent and the appellant shall compensate the 1st respondent for the suit property within one year from the date of this judgment
- 3.The default order of injunction issued against the 2nd and 3rd respondent and the appellant is set aside
- 4.The costs of the appeal and of the Petition before the ELC is awarded to the 1st respondent as against the 2nd respondent, the 3rd respondent and the appellant
- On appeal from
- Environment and Land Court
- Constitutional Petition No. 33 of 2019
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules, 2010 (Rule 93 for the cross-appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Doshi & another v Kenya National Highway Authority & 2 others (Environment and Land Petition E004 of 2025) [2025] KEELC 8368 (KLR)[2025] KEELC 8368 (KLR)26 Nov 2025followed
Cite this brief
#Cite this brief
Caselaw, "Kenya Ports Authority v Nightshade Properties Ltd & 4 others (Civil Appeal E025 of 2021) [2023] KECA 870 (KLR)", Case Analysis (2023). Civil Appeal (against Malindi ELC Constitutional Petition No. 33 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/870/eng@2023-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.