Kenya National Highways Authority v Broadways Enterprises Ltd & 3 others (Civil Appeal 27 of 2018) [2024] KECA 515 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed KENHA owes interest on compulsory land acquisition compensation, holding possession vests automatically sixty days after the award without any gazette notice.
What this practically means
#Executive summary
#Key legal issues
#Applicable law governing possession and interest
The repealed Land Acquisition Act, not the Land Act 2012, governed the acquisition because the Land Act was not enacted at the material times
The gazette notice of intention to acquire was issued on 23rd December 2011 and the award made on 17th April 2012, both before the Land Act commenced. The operative law for the procedures of compulsory acquisition on those dates was therefore the Land Acquisition Act, since repealed. Section 120 of the Land Act, though similar, omits the presumption and automatic vesting that section 19 of the repealed Act provides.
Date of possession of the acquired land
Possession was deemed taken sixty days after the award, i.e. on 17th June 2012, by operation of the presumption in section 19 of the repealed Act
Possession requires both factual possession and permanent, exclusive possessory intent. The gazette notice of intention and the award evidenced the intention to possess; coupled with the presumption in section 19, the elements of possession were in place within sixty days of the award. The trial Judge's finding of possession from 14th April 2012 was adjusted to the sixty-day date.
New evidence for review
The notice of taking possession issued on 17th May 2016 did not qualify as new evidence for review
Order 45 of the Civil Procedure Rules requires that new evidence be such as could not, with due diligence, be produced at the time the order was made. The notice of 17th May 2016 was issued five years after the ruling sought to be reviewed, so it was not in existence at the relevant time and could not ground a review.
Validity of the consent order
The consent order of 24th May 2016 was lawfully entered with KENHA's instructions and binds KENHA
KENHA's letter of 13th April 2016 instructed its advocates to confirm payment of Kshs 13,768,934/- as interest. Counsel present at the adoption of the consent was on record for KENHA and repeated the instructions in a sworn affidavit filed at the trial court and never struck out. Privilege and admissibility of the letter were therefore non-issues, and no ground was shown to set the consent aside.
Interest on the compensation award
Interest under section 16(1) of the repealed Act was payable, running from the deemed date of possession (17th June 2012) rather than 14th April 2012, but the trial Judge's discretion was not otherwise disturbed
Section 16(1) of the repealed Land Acquisition Act provided interest from the time of taking possession. Since the Court found deemed possession sixty days after the award, the only correction warranted was to the commencement date of the interest period. In all other respects the trial Judge's exercise of discretion stood, subject to the intervening consent order.
Legal principles established
#- Possession of compulsorily acquired land vests in the Government by operation of law after the expiry of the statutory period, without need of a gazetted notice of actual taking of possession, where the repealed Land Acquisition Act applied
- New evidence on a review under Order 45 must have been in existence at the time of the order sought to be reviewed and not within the applicant's knowledge despite due diligence
- A consent order recorded by counsel acting on instructions binds the client and can only be set aside on grounds that would vitiate a contract
Court orders
#- 1.The appeal by KENHA is dismissed with costs to Broadway
- 2.The Notice of Cross Appeal dated 18th January 2021 by Broadway is marked as withdrawn, with no orders on costs
- On appeal from
- High Court at Nairobi
- Constitutional Petition No. 265 of 2014
- Jurisdiction invoked
- First appeal to the Court of Appeal (courts-martial/appeal jurisdiction of the Court of Appeal under the Constitution and appellate procedure; the judgment proceeds as a first appeal on fact and law without citing a specific provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Highways Authority v Broadways Enterprises Ltd & 3 others (Civil Appeal 27 of 2018) [2024] KECA 515 (KLR)", Case Analysis (2024). Civil Appeal (by KENHA, Memorandum of Appeal dated 19th January 2018); Cross-Appeal by Broadway dated 18th January 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/515/eng@2024-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.