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ELCPartially AllowedConstitutional Petition No. E29 of 2020· [2021] KEELC 1292 (KLR)

Fort Properties Ltd v Attorney General & 2 others [2021] KEELC 1292 (KLR)

Environment and Land Court
28 October 2021
11,238 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~45 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered the government to pay a landowner Kshs. 242.95 million within 30 days for land taken for a road project six years earlier without compensation.

What this practically means

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Executive summary

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Fort Properties Ltd petitioned the Environment and Land Court at Mombasa claiming that its two parcels, MN/VI/4931 and MN/VI/4929, had been compulsorily acquired in 2014 for the Mombasa Southern Dongo Kundu Bypass and Kipevu Terminal Link Road, and that although an award of Kshs. 242,950,000/= was made for MN/VI/4931 in June 2015, no compensation was paid for over six years even though the road was completed and in public use. It sought declarations of violation of Articles 40 and 47, payment of the award with interest, mesne profits for MN/VI/4929, degazettement and vacant possession of that parcel, and costs. The 1st Respondent was withdrawn by consent. KeNHA blamed the National Treasury and argued the Petition was premature; the NLC admitted the award but opposed interest and asserted MN/VI/4929 had been degazetted. Framing four issues, the court held the Petition met the Anarita Karimi Njeru precision threshold. It found just compensation is mandatory, prompt and full; that neither Respondent offered any cogent reason for the six-year non-payment, and their blame of the non-party National Treasury amounted to an evasive dereliction of statutory duty. It found MN/VI/4929 was never validly acquired, rendering any use of it null and void. The Petition was allowed: declarations of contravention of Articles 40 and 47 were issued, a mandatory injunction compelled payment of Kshs. 242,950,000/= within 30 days with interest from 21st March 2014, mesne profits of Kshs. 200,000 per month were awarded for MN/VI/4929, and degazettement with vacant possession was ordered within 30 days, with costs and interest to the Petitioner.

Key legal issues

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01

Whether the Petition met the constitutional pleading threshold

Holding

The Petition met the threshold of reasonable precision as required by Anarita Karimi Njeru.

Reasoning

The court reviewed the constitutional provisions invoked and applied the standard from Anarita Karimi Njeru as explained in Mumo Matemu, that constitutional violations must be pleaded with a reasonable degree of precision. Applying these principles, the court was satisfied that the Petitioner had dutifully complied with and fully met the threshold for instituting the Petition and pleading the prayers sought.

p. 9
02

Whether the compulsory acquisition process contravened Article 40(3) of the Constitution and the Land Act

Holding

The acquisition of MN/VI/4931 without payment of compensation for over six years contravened Article 40(3) and the Land Act; parcel MN/VI/4929 was never compulsorily acquired and its use was null and void.

Reasoning

The court traced the statutory framework for compulsory acquisition under Part VIII of the Land Act and Article 40(3), holding just compensation must be prompt and full. Both Respondents admitted the award of Kshs. 242,950,000/= yet offered no reasonable cause for six years of non-payment, blaming the National Treasury, which was not a party. This passing of the buck amounted to a violation of the Petitioner's rights. On MN/VI/4929, the evidence was contradictory and the Petitioner was never involved; the court found it was never acquired.

p. 11
03

Whether the Petitioner was entitled to interest and mesne profits

Holding

The Petitioner was entitled to interest on the delayed compensation award from 21st March 2014 and to mesne profits on MN/VI/4929 from 2nd June 2015.

Reasoning

The court held it was not in dispute that the Petitioner was entitled to full, just and prompt compensation and also to mesne profits for MN/VI/4929 from 2nd June 2015. As the land was never validly acquired and was occupied without lawful basis, mesne profits were awardable, though the court reduced the rate from the claimed Kshs. 2 million per month to Kshs. 200,000 per month or 12% court rate per annum.

p. 12
04

Whether the Petition was premature and whether the National Treasury ought to have been joined

Holding

The plea of prematurity and the blame on the National Treasury was rejected as an evasive abdication of statutory duty.

Reasoning

The Respondents argued the Petition was premature, the process multi-agency, and that the National Treasury held the funds and should have been joined. The court found there was no privity between the Petitioner and the National Treasury or KPA; it was the Respondents, privy to the internal bureaucratic machinations, who should have sought the joinder. The argument was characterised as theatrics and blame games after six years.

p. 11

Legal principles established

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  • Just compensation for compulsorily acquired land is mandatory and must be prompt and in full.
  • Citizens should not be deprived of their land by the State against their wish unless expressly authorised by law and public interest decisively demands it.
  • Compensation must be made up fully to the person whose land is compulsorily acquired.
  • The State must not abuse the constitutional and statutory authority to expropriate private property.

Court orders

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  1. 1.A declaration that the Petitioner's rights to acquire and own property guaranteed under Article 40 of the Constitution and Sections 111(1) and 115(1) of the Land Act, 2012 have been contravened by the Government of Kenya, the 2nd and/or 3rd Respondents
  2. 2.A declaration that the Petitioner's rights to fair administrative action under Article 47 of the Constitution have been contravened by the 3rd Respondent
  3. 3.A mandatory injunction compelling the 2nd and 3rd Respondents to pay the Petitioner within 30 days the full compensation of Kshs. 242,950,000/= for the acquired portion of MN/VI/4931 from funds held by the National Treasury
  4. 4.A declaration that the Petitioner is entitled to interest on the compensation award for MN/VI/4931 at the prevailing court rate from 21st March 2014 or from the date the 2nd Respondent entered upon the suit property
  5. 5.Mesne profits at Kenya Shillings Two Hundred Thousand (Kshs. 200,000.00) per month or 12% court rate per annum for unlawful continued occupation of MN/VI/4929 from 2nd June 2015 until vacant possession is given
  6. 6.The 3rd Respondent to, within 30 days of judgment, publish in the Kenya Gazette the degazettement of the cancelled portion of MN/VI/4929, give vacant possession of that portion, and pay the awarded Kshs. 242,950,000.00 plus interest and mesne profits
  7. 7.Costs of the Petition and interest to the Petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1),(3),(4), 3(1), 10, 19, 20, 22, 23, 40(1),(2)&(3), 47, 60(1), 64, 69, 162, 165, 258, 259(1)
  • Environment and Land Court ActArticle/Section 13
  • Land Act, 2012Sections 107, 107(2),(3),(5),(8), 108, 110(1), 111, 112, 113, 114, 115, 117(1), 120(3), 120-122, 142(2), Part VIII (Sections 107-133)
  • Land Acquisition Act (Repealed), Cap 295Section 9(1) and schedule
  • Land RegulationsPart V
  • Civil Procedure Rules, 2010Order 1 Rule 14, Order 25 Rule 1
  • Companies Act Cap 486
  • Repealed Constitution of KenyaSection 75

Cases cited (12)

  • Anarita Karimi Njeru –VS- Republic
    [1980] KLR 154 / (1979) eKLR
  • Patrick Musimbi –VS- National Land Commission & 4 Others
    Petition No. 613 of 2014
  • Isaiah Otiato & 6 Others –VS- County Government of Vihiga
    2018 eKLR
  • Arnacherry Ltd. –VS- Attorney General
    2014 eKLR
  • Priest –VS- Secretary of State
    (1882) 81 LGR 193, 198
  • Joseph Ihungo Mwaura & Others –Vs– The AG & Others
    (2012) eKLR
  • Mumo Matemu – Vs – Trusted Society of Human Rights Alliance & Another
    (2013) eKLR
  • Thorp – Vs – Holdsworth
    (1886) 3 Ch. D 637
  • Viranda Ramji Gudka & 3 Others – Vs – The AG
    (2014) eKLR
  • Nas Auto Spares – Vs – Land Acquisition & Compensation Tribunal & 2 Others
    (2015) eKLR
  • Horn –VS- Sunderland Corporation
    [1941] 2 KB 264
  • Republic versus National Land Commission & 2 others Ex-parte Samuel M.N. Mweru & 5 Others
    [2018] eKLR
Jurisdiction invoked
Articles 22, 23, 165 of the Constitution of Kenya, 2010; Article 13 of the Environment and Land Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Fort Properties Ltd v Attorney General & 2 others [2021] KEELC 1292 (KLR)", Case Analysis (2021). Constitutional Petition No. E29 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1292/eng@2021-10-28

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