Fort Properties Ltd v Attorney General & 2 others [2021] KEELC 1292 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Petition met the constitutional pleading threshold
The Petition met the threshold of reasonable precision as required by Anarita Karimi Njeru.
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.
Whether the compulsory acquisition process contravened Article 40(3) of the Constitution and the Land Act
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.
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.
Whether the Petitioner was entitled to interest and mesne profits
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.
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.
Whether the Petition was premature and whether the National Treasury ought to have been joined
The plea of prematurity and the blame on the National Treasury was rejected as an evasive abdication of statutory duty.
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.
Legal principles established
#- 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
#- 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.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.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.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.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.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.Costs of the Petition and interest to the Petitioner
- Jurisdiction invoked
- Articles 22, 23, 165 of the Constitution of Kenya, 2010; Article 13 of the Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ongete v Registrar; Nairobi City County (Interested Party) (Environment and Land Petition 5 of 2023) [2025] KEELC 8673 (KLR)[2025] KEELC 8673 (KLR)5 Dec 2025
Cite this brief
#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.