Nightshade Properties Ltd v National Land Commission & 3 others [2021] KEELC 3965 (KLR)
The bottom line
#Kenya's government can take your land before paying, but courts will force the National Land Commission to compensate you fast — or hand the land back.
What this practically means
#Executive summary
#Key legal issues
#Compliance of the Respondents with the compulsory acquisition process under the Constitution and Land Act
The Respondents did not follow the process of compulsory acquisition in full and to its end; they occupied the land from 2016 but only commenced the formal acquisition process in February 2018, and the Petitioner remained uncompensated without explanation
The court traced the statutory scheme in Part VIII of the Land Act as summarized in Patrick Musimba. Although possession preceded the formal process, the delay was partly attributable to the Petitioner's own title dispute, resolved only in May 2017. Even after the National Land Commission learned of the validation of the Petitioner's title in June 2017 and directed gazettement, no compensation followed by the filing of the Petition in November 2019, breaching the constitutional requirement of prompt payment of just compensation.
Constitutionality of Section 120 of the Land Act (possession before compensation)
Section 120 of the Land Act is not unconstitutional; the Government may take possession before completion of all procedures where exigencies demand
Applying African Gas Oil Company Ltd v Attorney General, the court held that the lapse of time before compensation does not invalidate acquisition, and that possession may be taken where it would be contrary to the public interest to delay, with just compensation still payable promptly thereafter. The acquisition served the public purpose of the LAPSSET Corridor Project.
Constitutionality of Sections 13(1)(b), 2(a), (3) and (4) of the Kenya Ports Authority Act Cap 391 and the National Assembly's role
The court declined to determine the constitutionality of the KPA Act provisions since KPA acted only as an implementing agency in a national government process
The court found the compulsory acquisition was initiated by the national government with KPA merely implementing it; the accusation against KPA of acquiring land under its own statute had no foundation. Consequently, neither the constitutionality of the cited Cap 391 provisions nor the National Assembly's legislative duty needed to be addressed.
Legal principles established
#- Possession of land may be taken before completion of compulsory acquisition procedures and before payment of compensation; failure to pay compensation does not of itself invalidate the acquisition process (Section 120 Land Act upheld)
- Where land is compulsorily acquired, just compensation must be paid promptly and in full to persons whose interests in the land have been determined
Court orders
#- 1.An order of mandamus directing the 1st Respondent to convene a meeting under Section 112 of the Land Act to determine just compensation due to the Petitioner within 45 days from the date of the order
- 2.In default, an order of injunction upon expiry of the 45 days restraining the 1st, 2nd and 5th Respondents from remaining on, entering upon or interfering with LR No. 2801 Mokowe Lamu or the Petitioner's peaceful possession and enjoyment of the property
- 3.The Petitioner shall have the costs of this Petition
- Jurisdiction invoked
- Article 40, 47 of the Constitution of Kenya 2010; petitions jurisdiction of the Environment and Land Court over compulsory acquisition of land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nightshade Properties Ltd v National Land Commission & 3 others [2021] KEELC 3965 (KLR)", Case Analysis (2021). Petition (as lodged 2nd December 2019, Malindi ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3965/eng@2021-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.