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ELCDismissed· [2020] KEELC 2599 (KLR)

Vijay Laxmi Shah & 4 others v National Land Commission & 3 others [2020] KEELC 2599 (KLR)

Environment and Land Court
15 May 2020
OAO.A. Angote
723 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenyan courts will not stop lawful compulsory acquisition of private land for public projects; landowners should focus on securing prompt compensation.

What this practically means

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Executive summary

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The Plaintiffs, registered proprietors of L.R. No. 10426/245 in Mavoko measuring approximately 2.176 hectares, moved the court by Notice of Motion dated 30th July, 2019 seeking a temporary injunction to restrain the Defendants from encroaching on, or interfering with, the suit property, including by road works and erection of power lines. The 5th Plaintiff deponed that the 2nd Defendant had appointed private contractors who placed beacons earmarking 0.1123 Ha of the land for the expansion of the Athi River-Mombasa Highway, while the 3rd Defendant had earmarked sections for power line infrastructure, all without consent. In response, the 1st Defendant, acting under Part VIII of the Land Act, acknowledged that it had been instructed to compulsorily acquire the land under Gazette Notice No. 9536 of 29th September, 2017, but stated that the 2nd Defendant had since revised the road design with minimal land acquisition and instructed publication of a corrigenda. The court found it undisputed that the Plaintiffs own the property, but held that under Article 40 of the Constitution the Defendants, exercising Eminent Domain, may acquire private land for public use upon payment of prompt compensation. The lawful acquisition process could not be stopped; the Plaintiffs' only recourse is a claim for compensation in the main suit. The application was disallowed with no order as to costs.

Key legal issues

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01

Whether the court should grant a temporary injunction against contemplated compulsory acquisition

Holding

The injunction was refused because the acquisition power is lawful under Article 40 and the owners' entitlement is compensation, not an order stopping the acquisition

Reasoning

The court found the Plaintiffs to be registered owners and that the Defendants had initially intended to acquire the land. However, because the acquisition of private land for public use is permitted under Article 40's Eminent Domain provision, the process cannot be halted. The Plaintiffs' recourse lies in a claim for prompt compensation, to be pursued in the main suit.

p. 2

Legal principles established

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  • The State may compulsorily acquire private land for public use under Eminent Domain, subject to prompt compensation to the owner
  • A court will not halt a lawful compulsory acquisition; the landowner's remedy is limited to compensation

Court orders

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  1. 1.The Application dated 30th July, 2019 is disallowed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Land ActPart VIII
Jurisdiction invoked
Article 40 of the Constitution (power of Eminent Domain / compulsory acquisition); interim injunctive relief in a pending land suit

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, "Vijay Laxmi Shah & 4 others v National Land Commission & 3 others [2020] KEELC 2599 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2599/eng@2020-05-15

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