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ELCDismissedNot stated in the judgment· [2020] KEELC 2605 (KLR)

Chigwell Holdings Limited v National Land Commission & 3 others [2020] KEELC 2605 (KLR)

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

The bottom line

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Kenya's courts will not stop lawful compulsory acquisition of private land for roads; landowners should focus on securing full compensation instead.

What this practically means

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Executive summary

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The Plaintiff, the registered proprietor of Land Reference No. 10426/30 measuring approximately 99.5 acres at Mavoko, moved the court by Notice of Motion dated 30th July 2019 seeking a temporary injunction restraining the Defendants from encroaching on or interfering with the property, including carrying out road works for the Athi River-Mombasa Highway expansion and erecting power line infrastructure. The Plaintiff complained that the 2nd Defendant had placed beacons on the land without consent and that the 2nd and 3rd Defendants' actions amounted to unlawful encroachment and trespass. In response, the 1st Defendant (the National Land Commission) deponed that, under Part VIII of the Land Act, it had been instructed to compulsorily acquire the parcel via Gazette Notice No. 9536 of 29th September 2017 for the second carriageway of the Athi River-Machakos Turnoff Road Project, but that the 2nd Defendant had since revised the road design and instructed publication of a corrigenda removing the parcel from the acquisition schedule. The court held that it was not in dispute that the Plaintiff owned the property, but that under Article 40 of the Constitution the Defendants, exercising the power of Eminent Domain, may acquire private land for public use upon prompt compensation. Since the acquisition process was lawful, the court could not stop it, and the Plaintiff's remedy was limited to a claim for compensation in the main suit. The application dated 30th July 2019 was disallowed with no order as to costs.

Key legal issues

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01

Whether an interlocutory injunction could issue against state agencies undertaking compulsory acquisition for a public road project

Holding

The application for injunction was disallowed because the acquisition of private land for public use is lawful under Article 40, and the Plaintiff's remedy lies in compensation, not in stopping the process

Reasoning

The court found it was not in dispute that the Plaintiff is the registered owner of the suit property. However, the 1st Defendant had been instructed to compulsorily acquire the land under Part VIII of the Land Act, and although the road design was revised and acquisition shelved, the power of Eminent Domain permits acquisition of private land for public use. Once the acquisition is lawful, the court cannot halt the process, and the Plaintiff is confined to pursuing compensation in the main suit.

p. 2

Legal principles established

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  • Under Article 40 of the Constitution, the State may compulsorily acquire private land for public use under the power of Eminent Domain, subject to the entitlement of the owner to prompt compensation
  • Where compulsory acquisition is permitted by law, a court will not stop the acquisition process; the landowner's remedy is limited to a claim for 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 KenyaArticle 40
  • Land ActPart VIII
Jurisdiction invoked
Article 40 of the Constitution (power of Eminent Domain) as invoked in the context of an interlocutory injunction under the Land Act, Part VIII

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, "Chigwell Holdings Limited v National Land Commission & 3 others [2020] KEELC 2605 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2605/eng@2020-05-15

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