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ELCPartially AllowedPetition dated 29th November 2017· [2020] KEELC 197 (KLR)

Springdew Properties Limited v National Land Commission & another [2020] KEELC 197 (KLR)

Environment and Land Court
14 December 2020
6,425 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that landowners can reclaim compulsorily acquired land if the public purpose fails, and the government cannot reverse that without hearing them first.

What this practically means

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Executive summary

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The Petitioner, a company owning L.R No. 12861/253, sued the National Land Commission and KeNHA after the 1st Respondent's Gazette Notice of 4th August 2017 reinstated the compulsory acquisition of the suit property, reversing a 2015 Gazette Notice that had reverted the land to the Petitioner upon its refund of Kshs. 29,600,000/= compensation. The land had originally been compulsorily acquired in 2008/2009 by the Commissioner of Lands for the Thika Superhighway project on behalf of KeNHA, but was never used for that purpose. The Petitioner alleged violation of Articles 40(3) and 47(1) of the Constitution and non-compliance with the Land Acquisition Act. The Respondents contended that the NLC Chairman acted ultra vires and without KeNHA's authority in reverting the land, and that once acquired the land became public land. The Court framed three issues: validity of the re-acquisition, violation of rights, and entitlement to relief. It held that Section 110(2) of the Land Act conferred pre-emptive rights, that the Petitioner exercised them through the proper authority and fully reimbursed the compensation, and that the Respondents failed to prove the Chairman's alleged lack of authority. The Court also found the Petitioner was condemned unheard when the acquisition was reinstated, violating Article 47 and natural justice. Judgment was entered for the Petitioner on a balance of probabilities in terms of prayers (i), (iii) and (vi), with the 1st Respondent directed to comply immediately with prayer (iii). Costs were awarded to the Petitioner against the Respondents.

Key legal issues

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01

Whether the Petitioner validly re-acquired the suit property despite the 1st Respondent's claim that the Chairman acted without the full Commission's authority

Holding

The Petitioner validly re-acquired the suit property; the Respondents failed to prove the alleged lack of authority.

Reasoning

Section 110(2) of the Land Act confers pre-emptive rights on original owners where the public purpose justifying acquisition fails or ceases, upon restitution of the compensation paid. The Petitioner sought to exercise these rights through the National Land Commission and made the required reimbursement. The Commission alleged the letters and Gazette Notice of 9th October 2015 were unauthorised but did not produce the investigation report or committee minutes. In Salome Munubi the Commission had produced such minutes; here it did not. The Petitioner therefore could not be blamed for the 1st Respondent's internal misgivings.

p. 6
02

Whether the Petitioner's rights to fair administrative action were violated by the Gazette Notice of 4th August 2017 reinstating the acquisition

Holding

Yes; the Petitioner's rights to fair administrative action under Article 47 were violated and the Gazette Notice of 4th August 2017 is null and void.

Reasoning

The Respondents acknowledged that the Petitioner was never informed before the Gazette Notice reversing the reversion was published. Articles 47 and 50 of the Constitution guarantee fair, lawful and procedurally fair administrative action and fair hearing. Following Halsbury's Laws and the Ex Parte Archdiocese of Nairobi decision, failure to afford a hearing breaches natural justice (audi alteram partem) and renders the Commission's decision invalid.

p. 7
03

Whether the Petitioner is entitled to the orders sought, including compensation in accordance with the law

Holding

The Petitioner proved its case on a balance of probabilities; judgment was entered in terms of prayers (i), (iii) and (vi), with a direction that the 1st Respondent comply immediately with prayer (iii).

Reasoning

Having found that the Petitioner validly re-acquired the property and that its fair administrative action rights were violated, the Court held the prayers merited. Because the Petitioner validly re-acquired the property, any fresh taking of the land must follow the compulsory acquisition process under the Land Acquisition Act, with compensation assessed and paid promptly before the Respondents take over the property. Prayer (ii) in its primary form was not among the orders granted.

p. 7

Legal principles established

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  • Where a party alleges that a transaction or communication lacked authority, it must prove that allegation; the court cannot find ultra vires action without the supporting evidence such as investigation reports and minutes.
  • An owner who exercises statutory pre-emptive rights under Section 110(2) of the Land Act, and who makes full restitution of the compensation paid, validly re-acquires land where the public purpose for the compulsory acquisition has failed or ceased.
  • A party affected by an administrative decision may not be condemned unheard; failure to accord a hearing breaches natural justice and Article 47 and renders the decision invalid.

Court orders

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  1. 1.A declaration that the Petitioner's rights under Articles 40(3) and 47(1) of the Constitution were violated by the Respondents (prayer (i))
  2. 2.An order directing the 1st Respondent to immediately comply with the relevant provisions of the Constitution and the Land Acquisition Act in the acquisition of the suit property, including assessment and prompt payment of compensation (prayer (iii))
  3. 3.Costs of the Petition to be borne by the Respondents (prayer (vi))

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 3, 10, 20, 22, 23, 40(3), 47, 50, 162
  • Land Acquisition Act (Cap 295 Laws of Kenya)generally
  • Land ActSections 7, 12, 110 (including 110(2))
  • National Land Commission ActSections 7 and 8
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (5)

  • Salome Munubi & 5 others Vs Muhammad Swazuri & 2 others; Emmanuel Busera (Interested Party)
    [2019] eKLR
  • Royal Media Services Limited & 2 Others Vs Attorney General & 8 Others
    (2014) eKLR
  • Republic Vs President & 7 others Exparte Wilfrida Itolondo & 4 others
    [2014] eKLR
  • Catholic Diocese of Moshi vs. Attorney General
    [2000] 1 EA 25 (CAT)
  • Republic Vs National Land Commission & 2 Others, Ex Parte Archdiocese of Nairobi Kenya Registered Trustees (St. Joseph Mukasa Catholic Church Kahawa West)
    [2018] eKLR
Jurisdiction invoked
Articles 20, 22, 23 and 162 of the Constitution of Kenya 2010 (constitutional petition on violation of Articles 40(3) and 47(1))

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, "Springdew Properties Limited v National Land Commission & another [2020] KEELC 197 (KLR)", Case Analysis (2020). Petition dated 29th November 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/197/eng@2020-12-14

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