Springdew Properties Limited v National Land Commission & another [2020] KEELC 197 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
The Petitioner validly re-acquired the suit property; the Respondents failed to prove the alleged lack of authority.
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.
Whether the Petitioner's rights to fair administrative action were violated by the Gazette Notice of 4th August 2017 reinstating the acquisition
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.
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.
Whether the Petitioner is entitled to the orders sought, including compensation in accordance with the law
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).
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.
Legal principles established
#- 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
#- 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.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.Costs of the Petition to be borne by the Respondents (prayer (vi))
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.