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ELCPartially AllowedConstitutional Petition dated 10th September 2015 (Further Amended Petition dated 6th February 2019); Notice of Motion dated 14th July 2021· [2021] KEELC 92 (KLR)

Geyser International Assets Limited v Attorney General & 3 others [2021] KEELC 92 (KLR)

Environment and Land Court
15 December 2021
LNL.L Naikuni
6,393 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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A Mombasa court confirmed that only the National Land Commission pays compensation for acquired land, though the acquiring body stayed on as an interested party.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (L.L Naikuni, J) on a Notice of Motion dated 14th July 2021 by the 2nd and 4th Respondents seeking dismissal of the claim against them in the Further Amended Petition arising from the compulsory acquisition of the Petitioner's land (LR Mainland North/Section VI/3892) for the Standard Gauge Railway project. The 2nd and 4th Respondents argued that the Land Act, 2012 (Sections 125(1) and 117(1)) imposes the obligation to pay compensation and interest solely on the National Land Commission (3rd Respondent), that no relief was pleaded against them, and that the Petitioner had admitted payment of the full compensation of Kshs. 381,125,071 on 9th November 2017. The Petitioner opposed, arguing the 2nd Respondent was the acquiring body and beneficiary, and that the application was res judicata given the court's ruling of 14th January 2019 permitting amendment. The court analysed the constitutional and statutory framework of compulsory acquisition under Article 40(3) and Part VIII of the Land Act, held that liability for compensation and interest rests exclusively on the NLC, that the Petitioner had by amendment struck out the 2nd and 4th Respondents' names, and found no res judicata since the earlier ruling dealt only with amendment. The application was allowed with costs to the Petitioner, but the court, accepting the Petitioner's practical concerns about access to information, retained the 2nd and 4th Respondents as 1st and 2nd Interested Parties (Amicus Curiae), to be discharged upon final determination. The Petition was set down for hearing within 90 days with a mention on 9th February 2022. Costs of the application were awarded against the Petitioner.

Key legal issues

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01

Whether the claim against the 2nd and 4th Respondents should be dismissed

Holding

Yes - the statutory duty to pay compensation and interest on compulsory acquisition lies solely on the National Land Commission; the Further Amended Petition seeks no relief against the 2nd and 4th Respondents and their names were struck out by amendment.

Reasoning

The court analysed the compulsory acquisition framework under Article 40(3) of the Constitution and Part VIII of the Land Act, 2012, holding that Sections 117(1) and 125(1) place payment of compensation and interest on the NLC exclusively. The Further Amended Petition's prayers were directed at the 1st and 3rd Respondents only, and the Petitioner had struck out the 2nd and 4th Respondents' names by amendment. The Petitioner admitted full payment of Kshs. 381,125,071 on 9th November 2017.

p. 6
02

Whether the application was res judicata given the earlier ruling of 14th January 2019 allowing amendment

Holding

No - the earlier ruling dealt only with amendment of the Petition; the present application concerns dismissal of the claim, a distinct issue not previously heard and finally determined.

Reasoning

The court set out Section 7 of the Civil Procedure Act and the ingredients of res judicata. The former issue was whether to amend the Petition, which was heard and determined; the instant issue is dismissal of the Petition against the 2nd and 4th Respondents, which has neither been heard nor concluded. The ingredients of res judicata were therefore absent.

p. 7
03

Whether the 2nd and 4th Respondents should remain in the proceedings

Holding

Yes, but only as 1st and 2nd Interested Parties (or Amicus Curiae), for information, resource and quality assurance purposes, to be discharged upon final determination.

Reasoning

Although entitled to dismissal of the claim against them, the Petitioner's concern that removing the acquiring body might frustrate access to information about the project persuaded the court to retain the 2nd and 4th Respondents in a limited capacity as interested parties/amicus curiae rather than respondents.

p. 7

Legal principles established

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  • The law imposes the obligation to pay compensation and interest for compulsory acquisition of land exclusively on the National Land Commission and not on the acquiring body.
  • Just compensation for compulsory acquisition is mandatory, must be prompt and in full, and courts must remain vigilant against abuse of the power of expropriation.
  • Where the names of respondents are struck out by amendment, no claim can lie against them.

Court orders

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  1. 1.The Notice of Motion application by the 2nd and 4th Respondents be and is hereby allowed with costs
  2. 2.For the sake of information, resource and quality assurance the 2nd and 4th Respondents to remain in this Constitution Petition proceedings merely as 1st and 2nd Interested Parties (or 'The Amicus Curiae' of Court)
  3. 3.Unless otherwise stated, the Honourable Court shall henceforth unconditionally discharge, dispense and/or dispel the 1st and 2nd Interested Parties from the matter upon the final conclusion and/or determination of the case
  4. 4.For the expediency purpose the Petition through the Further Amended Petition to be set down for hearing within the next 90 days by both the submissions and Viva voce evidence; the matter to be mentioned on 9.2.2022 for purposes of taking directions and pre-trial conference sessions
  5. 5.Costs of the application to be borne by the Petitioner

Authorities

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Legislation

  • Civil Procedure Act Cap 21Sections 1A(1), 3A, 63(e), 7, 27(1)
  • Civil Procedure Rules, 2010Order 1 Rule 10(2), Order 51 Rule 1
  • Constitution of KenyaArticles 10(2)(b), 23, 40(1), (2) and (3)
  • Land Act, 2012 (No. 6 of 2012)Sections 107-133, 107(1), (2), (3), (5), (8), 108, 110(1), 111, 111(1A), 112, 112(2), (5), 113-119, 113, 114, 117(1), 120-122, 125(1), 142(2)
  • Environment and Land Court Act No. 19 of 2011Section 13(1)
  • Land Regulations of 2017Part V
  • Land Adjudication Act Cap 287Not specified (relied on by the Petitioner)
  • Kenya Railways Corporation ActNot specified

Cases cited (9)

  • Republic – Versus – NLC & 2 Others Ex-Parte Samuel M.N. Mweru & 5 Others
    [2018] eKLR
  • Kipkai Enterpises Ltd – versus – Kenya Urban Roads Authority & 2 others
    [2019] eKLR
  • Arnacherry Limited – Versus – Attorney General
    [2014] eKLR
  • Christabel Akinyo Onyango – Versus – Kenya Airports Authority
    [2014] eKLR
  • Viranda Ramji Gudka & 3 Others – Vs – The AG
    (2014) eKLR
  • Nas Auto Spares – Vs – Land Acquisition & Compensation Tribunal & 2 Others
    (2015) eKLR
  • Patrick Musimba – VS – National Land Commission & 4 Others
    Petition No. 613 of 2014
  • Horn – VS – Sunderland Corporation
    [1941] 2KB 2640
  • John Florence Maritime Services Limited & Another – Vs – Cabinet Secretary for Transport and Infrastructure & 3 Others
    (2015) eKLR
Jurisdiction invoked
Articles 40 and 23 of the Constitution of Kenya and Sections 1A(1), 3A and 63(e) of the Civil Procedure Act, Order 1 Rule 10(2) and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Section 13(1) of the Environment and Land Court Act No. 19 of 2011

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, "Geyser International Assets Limited v Attorney General & 3 others [2021] KEELC 92 (KLR)", Case Analysis (2021). Constitutional Petition dated 10th September 2015 (Further Amended Petition dated 6th February 2019); Notice of Motion dated 14th July 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/92/eng@2021-12-15

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