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Court of AppealDismissedCivil Appeal No 85 of 2018· [2024] KECA 281 (KLR)

Registered Trustees of Premier Club & 2 others v Commissioner of Lands (Civil Appeal 85 of 2018) [2024] KECA 281 (KLR)

Court of Appeal of Kenya
8 March 2024
3,122 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal confirmed that special resumption clauses in Kenyan leases can allow government to reclaim land for public use without paying for the land itself.

What this practically means

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Executive summary

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This was a second appeal before the Court of Appeal at Nairobi against the dismissal by the High Court of the appellants' appeal from the Land Acquisition Compensation Appeals Tribunal. The respondent, the Commissioner of Lands, had compulsorily acquired portions of parcels belonging to the appellants (the Trustees of Premier Club, Premier Academy and Simba Union) for construction of the Thika Super Highway, gazetting notice of intent in July 2008. The appellants were paid Kshs 66,895,885 for developments and improvements but were refused compensation for their interest in the land, the respondent relying on special conditions in the leases permitting resumption of undeveloped land required for public purposes upon due notice without compensation. The single issue framed by the Court was whether the appellants were entitled to compensation for their interest in the land parcels. The Court, guided by the second-appeal principle that it deals only with questions of law, held that the special conditions in the leases bound the appellants, that the gazette notice constituted sufficient six months' notice, that valuation followed the schedule to the Land Acquisition Act, and that the surrender of the parcels was not unconstitutional. The Court affirmed the decision of the High Court, dismissed the appeal, and awarded costs to the respondent. The judgment binds subordinate courts on the effect of special resumption conditions in leasehold titles and on the scope of compensation payable under the repealed Land Acquisition Act.

Key legal issues

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01

Whether the appellants were entitled to compensation for their interest in the land in addition to compensation for developments

Holding

The appeal was dismissed; the special conditions in the leases allowed resumption without compensation for the interest in land, and the appellants had already been compensated for improvements and developments

Reasoning

The leases contained special clauses permitting the Government or the Council to resume undeveloped land required for a public purpose upon due notice, without compensation, with compensation payable only for improvements and developed land. The Court found the gazette notice constituted the required six months' notice, that valuation was carried out under the schedule to the Land Acquisition Act, and that the conditions restricted the use to which the land could be put, which was a relevant matter in assessing compensation. The High Court and Tribunal findings were therefore affirmed.

p. 5
02

Whether sufficient notice of surrender was served under the special conditions of the leases

Holding

The gazette notice issued and served was a six months' notice sufficient as contemplated in the special conditions

Reasoning

The appellants conceded that notice was given by Gazette Notice No 6034 of July 2008 notifying intent to compulsorily acquire portions of the parcels. The Court held that contrary to the appellants' submissions, the notice issued and served was for six months and was therefore sufficient under the special conditions, satisfying the covenant that resumption be upon due notice.

p. 5
03

Whether the failure to compensate for the interest in land was unconstitutional

Holding

The surrender made pursuant to the lease provisions was not unconstitutional

Reasoning

The Court held that the respondent diligently carried out his mandate in the valuation and compensation, that there was no breach of the law or of the lease or instrument, and that since the surrender was made pursuant to the provisions in the respective leases, which expressly excluded compensation for the interest in undeveloped land, the claim of unconstitutionality failed.

p. 6

Legal principles established

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  • On a second appeal, the Court of Appeal confines itself to questions of law only
  • Special conditions in a leasehold title resuming undeveloped land for public purposes without compensation, but with compensation for improvements and developed land, bind the grantee and defeat a claim for compensation for the interest in the land
  • In determining compensation for compulsorily acquired land, only the matters enumerated in the schedule to the Land Acquisition Act, including the effect of express or implied conditions of title restricting the use of the land, shall be considered

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

Authorities

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Legislation

  • Land Acquisition Act (Cap 295) (repealed)Section 2
  • Land Acquisition Act (Cap 295) (repealed)Sections 6 to 9
  • Land Acquisition Act (Cap 295) (repealed)Section 8
  • Land Acquisition Act (Cap 295) (repealed)Section 9
  • Land Acquisition Act (Cap 295) (repealed)First Schedule, rule 10
  • Land Acquisition Act (Cap 295) (repealed)Section 2 of the Schedule
  • Government Lands Act (Cap 280)
  • Constitution of Kenya (repealed)Section 75

Cases cited (4)

  • Commissioner of Lands v Jiwaji & another
    (1978) KLR 192
  • The Registered Trustees of the Aria Pratinidai Sabhaba v The National Land Commission & others
    H.C. Petition No 273 of 2015
  • Shree Visa Oshwal Community Nairobi Registered Trustees v Attorney General & 3 others
    [2014] eKLR
  • Kenya Breweries Ltd v Godfrey Odoyo
    [2010] eKLR
On appeal from
High Court of Kenya at Nairobi
Jurisdiction invoked
Second appeal to the Court of Appeal on questions of law (Court of Appeal jurisdiction over appeals from the High Court; specific statutory article not cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Registered Trustees of Premier Club & 2 others v Commissioner of Lands (Civil Appeal 85 of 2018) [2024] KECA 281 (KLR)", Case Analysis (2024). Civil Appeal No 85 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/281/eng@2024-03-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.