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ELCDismissedELC Petition No. 713 of 2016· [2020] KEELC 1157 (KLR)

Mohamed Abdi Osman v National Land Commission [2020] KEELC 1157 (KLR)

Environment and Land Court
30 September 2020
3,717 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court dismissed a landowner's compensation claim because he could not prove registered ownership and did not sue the road authority that owed the money.

What this practically means

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Executive summary

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The petitioner, Mohamed Abdi Osman, claimed to be the registered owner of two parcels known as Hamza Apartments along Outer Ring Road, Nairobi, charged to Gulf African Bank for a Kshs.90 million loan. By a gazette notice dated 22nd January 2016, the National Land Commission purportedly revoked his titles and excised 7 metres of each parcel for surrender to Kenya Urban Roads Authority for the Outer Ring road transport corridor. He sought declarations that his rights under Articles 40 and 47 were contravened, an order compelling the respondent to fast-track just compensation, and damages. The respondent opposed, arguing the petitioner lacked locus standi because the properties were sold in a public auction on 20th July 2016 and transferred to Samuel Mwangi Makome on 1st September 2016, and that it could only pay compensation once the acquiring body, KURA, deposited the funds under section 111(1A) of the Land Act; KURA should have been enjoined. The court framed three issues: locus standi, propriety of the acquisition, and entitlement to compensation. It held that the petitioner's 2019 transfers were unregistered, so he had no proprietary interest and no locus standi. It further held that failure to enjoin KURA, the acquiring body responsible for depositing compensation funds, was fatal to the petition. The petition was dismissed with each party bearing its own costs. The court also relied on the respondent's uncommissioned replying affidavit under Article 159(2)(d).

Key legal issues

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01

Locus standi

Holding

The petitioner lacked locus standi because the unregistered transfers of 2019 did not restore him as registered proprietor; the official search showed Samuel Mwangi Makome as registered owner from 1st September 2016.

Reasoning

The court accepted that the petitioner had proprietary interest when suit was filed on 23rd June 2016, but the properties were sold by public auction on 20th July 2016 and transferred to Samuel Mwangi Makome on 1st September 2016. The transfer annexed to the petitioner's further affidavit, dated 25th March 2019, was not registered, so the petitioner failed to demonstrate registered ownership or any proprietary interest conferring standing.

p. 5
02

Proper acquisition and entitlement to compensation

Holding

Although the gazette notice of 22nd January 2016 revoking titles and surrendering 7 metres was not disputed, the claim against the NLC could not succeed because the acquiring body, Kenya Urban Roads Authority, was not a party and had not deposited compensation funds with the Commission.

Reasoning

Section 111(1A) of the Land Act requires the acquiring body to deposit compensation funds with the Commission before acquisition. KURA was the acquiring body on whose behalf NLC acted, and it was essential to confirm whether funds had been deposited. The respondent's application to enjoin KURA was dismissed, and the court found the omission fatal to the petitioner's claim for compensation.

p. 5
03

Uncommissioned replying affidavit

Holding

The replying affidavit of Brian Ikol, though not commissioned as required by the Oaths and Statutory Declarations Act, was relied on under Article 159(2)(d) of the Constitution rather than expunged.

Reasoning

The court noted the defect but held that under Article 159(2)(d) it must administer justice without undue regard to technicalities, and that no prejudice would be occasioned to the petitioner by relying on the affidavit as filed.

p. 4

Legal principles established

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  • A petitioner claiming compensation for compulsory acquisition must demonstrate a proprietary interest in the suit land at the material time to have locus standi.
  • Under section 111(1A) of the Land Act, the acquiring body must deposit compensation funds with the National Land Commission before acquisition; the Commission cannot pay compensation without those funds.
  • Failure to enjoin the acquiring body (Kenya Urban Roads Authority) in a compensation claim against the National Land Commission is fatal to the petition.

Court orders

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  1. 1.The petition is dismissed.
  2. 2.Each party to bear own costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 19, 20, 21, 22, 23, 24, 40, 47, 159(2)(d)
  • Land Act, No. 6 of 2012Sections 107(1), 110, 111, 111(1A), 113, 114(2), 120(1), 122; Part VIII
  • Registered Land Act Cap 300 (repealed)
  • National Land Commission Act, 2012
  • Oaths and Statutory Declarations Act, Cap 15

Cases cited (6)

  • Patrick Kusumba vs NLC & 4 Others
    [2016] eKLR
  • Mtana Lewa vs Kahindi Ngala Mwagandi
    [2015] eKLR
  • Republic vs National Police Service Commission exparte Daniel Chacha
    [2016] eKLR
  • Rutongot Farm Limited vs Attorney General & 3 Others
    [2014] eKLR
  • Arnacherry Ltd vs Attorney General
    [2014] eKLR
  • Horn vs Sunderland Corporation
    [1941] 1 All ER 480
Jurisdiction invoked
Articles 19, 20, 21, 22, 23 and 24 of the Constitution of Kenya 2010 (contravention of Articles 40 and 47)

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, "Mohamed Abdi Osman v National Land Commission [2020] KEELC 1157 (KLR)", Case Analysis (2020). ELC Petition No. 713 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1157/eng@2020-09-30

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