Charles Cosmas Mdari v Attorney General & 2 others [2021] KEELC 2652 (KLR)
The bottom line
#A Kenyan landowner whose land was taken for the SGR without payment won his case, and the court ordered compensation with interest plus an anti-corruption investigation.
What this practically means
#Executive summary
#Key legal issues
#Whether Section 87 of the Kenya Railways Corporation Act barred the petition
No - the petition is founded on Article 40 constitutional violations, not on the Corporation's statute, and in any event 30 days' notice was given and delay was not inordinate
The court distinguished the authorities relied on by the 2nd respondent as disputes under the Kenya Railways Corporation Act, aligning the case with Ahmed Mohamed Mwinyihaji where the notice requirement was held inapplicable to a constitutional petition. It further noted the petitioner's advocate's letter of 30 March 2016 constituted notice, and that limitation is applied leniently in constitutional petitions where delay is explained.
Whether the compulsory acquisition procedure under Part VIII of the Land Act was followed
No - there was no proper inquiry as to compensation, no written award filed, and no notice of award served as required by Sections 112, 113 and 114
The Commission published a defective addendum naming three persons as 'registered land owner' when it never claimed they were registered owners; it produced no inquiry minutes, no written claims, no award, and no notice of award. Under Section 115 payment could not be made where there was a dispute as to entitlement, yet payment was made without any supporting record.
Whether the petitioner proved ownership and entitlement to compensation
Yes - the petitioner's title and official search were unchallenged and were superior to anything presented by the three purported claimants
The petitioner produced a certificate of title and official search; the respondents conceded he presented his title at the inquiry. The respondents produced no records of the inquiry, the award, or the payments, and despite a court order could not supply particulars of the three persons. The court concluded the three were fictitious names used to siphon public funds.
Whether the double-compensation/public-policy objection under Article 201(d) defeats the claim
No - it was the respondents' personnel who contravened Article 201(d); the public cannot suffer for their acts
The court held the questionable payment to phantom payees was itself the breach of prudence in the use of public funds, and referred the matter to the EACC for investigation, surcharge and recovery without prejudice to criminal action.
Legal principles established
#- A statutory limitation or notice provision cannot be used to defeat a constitutional petition alleging violation of the right to property
- Courts apply limitation less stringently in constitutional petitions provided the delay is not inordinate and is explained
- A certificate of title under Section 26 of the Land Registration Act is prima facie evidence of ownership, and a party alleging otherwise bears the burden of disproving it
- Where there is a competing claim to compensation for compulsorily acquired land, payment must not be made but the money set aside
- The State must not deprive a person of property without prompt payment in full of just compensation, and failure to follow the Land Act acquisition procedure violates Article 40
Court orders
#- 1.A declaration that the petitioner's right to acquire and own property under Article 40 of the Constitution has been contravened by the 2nd and 3rd respondents
- 2.A declaration that the petitioner's right to fair administrative action under Article 47 of the Constitution has been contravened by the 3rd respondent
- 3.A mandatory injunction compelling the 3rd respondent to communicate in writing, within 21 days, to the petitioner's advocate the amount of compensation awardable for the acquisition of the suit land
- 4.That if the amount communicated is acceptable, payment be made within 30 days of acceptance; if not acceptable, the dispute over the amount be determined under the Land Act
- 5.That the petitioner is entitled to interest on the compensation from 2 September 2014
- 6.That the 2nd and 3rd respondents jointly and/or severally bear the costs of the petition
- 7.That the Ethics and Anti-Corruption Commission (EACC) commence investigations into how the moneys were paid, with surcharge or recovery suits against culpable persons, without prejudice to criminal action; judgment to be served on the EACC
- Jurisdiction invoked
- Articles 40 and 47 of the Constitution of Kenya, 2010 (original jurisdiction over constitutional violations); jurisdiction over compulsory acquisition disputes upheld by Omollo J
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Cosmas Mdari v Attorney General & 2 others [2021] KEELC 2652 (KLR)", Case Analysis (2021). Constitutional Petition filed 21 April 2017 (Mombasa, Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2652/eng@2021-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.