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ELCDismissedNot stated in the judgment· [2020] KEELC 2636 (KLR)

Kiran Kumar Chandubhai & another v National Land Commission & 3 others [2020] KEELC 2636 (KLR)

Environment and Land Court
15 May 2020
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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What this practically means

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Executive summary

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The Plaintiffs, registered proprietors of Land Reference No. 10426/244 measuring approximately 1.960 hectares in 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 road works for the expansion of the Athi River-Mombasa Highway and the erection of power line infrastructure. The 2nd Plaintiff deponed that the Defendants placed beacons on the property earmarking 0.1246 Ha for road expansion without consent, amounting to encroachment, trespass and unconstitutional action. The 1st Defendant's Acting Director, Land Valuation and Taxation, responded that, under Part VIII of the Land Act, it was acquiring parcels on behalf of the 2nd Defendant for the Athi River-Machakos Turnoff Road Project, including the suit property via Gazette Notice No. 9536 of 29th September, 2017, but that the 2nd Defendant had since revised the road design, shelved acquisition of the property, and instructed publication of a corrigenda. The court found ownership undisputed but held that under Article 40 the Defendants, exercising the power of Eminent Domain, could lawfully acquire private land for public use subject to prompt compensation, and that such a lawful process cannot be stopped by the court. The Plaintiffs' remedy is a claim for compensation, to be pursued 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 can issue to restrain a lawful compulsory acquisition of private land for public use

Holding

No - a lawful acquisition under the power of Eminent Domain cannot be enjoined; the landowner's remedy is compensation

Reasoning

The court found it undisputed that the Plaintiffs own the suit property, but the 1st Defendant acknowledged that although it initially had instructions to compulsorily acquire the land, the road design was revised and the acquisition shelved. Even if acquisition proceeded, Article 40 permits acquisition of private land for public use on payment of prompt compensation. The process being lawful, the court could not stop it; the Plaintiffs' claim is limited to compensation, to be pursued in the main suit.

p. 2
02

Whether the Defendants' conduct amounted to trespass or unconstitutional action warranting restraint

Holding

The alleged earmarking of the property was within the 1st Defendant's statutory mandate under Part VIII of the Land Act and could not be restrained at the interlocutory stage

Reasoning

The 1st Defendant deponed that, pursuant to its mandate under Part VIII of the Land Act, it was acquiring parcels on behalf of the 2nd Defendant for the Athi River-Machakos Turnoff Road Project, including the suit property via Gazette Notice No. 9536 of 29th September, 2017. Following a revised road design and acquisition schedule, the 2nd Defendant instructed the 1st Defendant to publish a corrigenda. The court held the acquisition process lawful and not stoppable by the court.

Legal principles established

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  • Under Article 40 of the Constitution, the State exercising the power of Eminent Domain may acquire private land for public use, subject to payment of prompt compensation; a court cannot stop such lawful acquisition, and the landowner's recourse is a claim for compensation

Court orders

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  1. 1.The Application dated 30th July, 2019 was disallowed
  2. 2.No order as to costs
Jurisdiction invoked
Article 40 of the Constitution and the Land Act, Part VIII (compulsory acquisition / eminent domain), in a suit before the Environment and Land Court

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, "Kiran Kumar Chandubhai & another v National Land Commission & 3 others [2020] KEELC 2636 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2636/eng@2020-05-15

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