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ELCPartially AllowedPetition (as lodged 2nd December 2019, Malindi ELC)· [2021] KEELC 3965 (KLR)

Nightshade Properties Ltd v National Land Commission & 3 others [2021] KEELC 3965 (KLR)

Environment and Land Court
23 March 2021
6,056 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Nightshade Properties Ltd, the registered proprietor of LR No. 28101 (100 Ha at Mokowe, Lamu), petitioned the Environment and Land Court at Malindi after the LAPSSET Corridor Development Authority and the Kenya Ports Authority took possession of its land in 2016 for the Lamu Port Project without compensation. The National Land Commission issued Gazette Notice No. 1518 of 16th February 2018 expressing its intention to compulsorily acquire the land, but never proceeded to a compensation inquiry. The Petitioner sought certiorari to quash the acquisition, mandamus to compel a Section 112 Land Act inquiry, declarations that Sections 120 of the Land Act and Sections 13 and 14 of the Kenya Ports Authority Act were unconstitutional, and an injunction. The Commission did not respond. The court held that the Respondents failed to follow the compulsory acquisition process to its end, having occupied the land since 2016 while the formal process only began in 2018 and compensation had still not been paid by the filing of the Petition. However, the court, following African Gas Oil Company Ltd, declined to declare Section 120 of the Land Act unconstitutional, holding that possession before compensation does not invalidate a public-purpose acquisition, and declined to rule on the constitutionality of the KPA Act provisions since KPA was merely an implementing agency. The Petition partially succeeded: mandamus issued directing the Commission to convene a Section 112 compensation inquiry within 45 days, failing which an injunction would issue restraining the 1st, 2nd and 5th Respondents from the property; the Petitioner received costs.

Key legal issues

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01

Compliance of the Respondents with the compulsory acquisition process under the Constitution and Land Act

Holding

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

Reasoning

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.

p. 7
02

Constitutionality of Section 120 of the Land Act (possession before compensation)

Holding

Section 120 of the Land Act is not unconstitutional; the Government may take possession before completion of all procedures where exigencies demand

Reasoning

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.

p. 7
03

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

Holding

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

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 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. 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. 3.The Petitioner shall have the costs of this Petition

Authorities

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Legislation

  • Constitution of Kenya 2010Article 40(3)
  • Constitution of Kenya 2010Articles 1, 2, 10, 47, 67, 68, 95, 119(1)
  • Constitution of Kenya 2010Fourth Schedule
  • Constitution of Kenya 2010Sixth Schedule, Section 7
  • Land Act, 2012Sections 107-122, 111, 112, 120(2), 161
  • Kenya Ports Authority Act Cap 391Sections 13(1)(b), 2(a), (3), (4)
  • LAPSSET Corridor Development Authority Order, 2013Section 2

Cases cited (5)

  • Ananta Karimi Njeru –vs- Republic
    (1979) eKLR
  • African Gas Oil Company Ltd –vs- Attorney General & 3 Others
    (2016) eKLR
  • Isaiah Otiato & 6 Others –vs- County Government of Vihiga
    (2018) eKLR
  • Patrick Musimba –vs- National Land Commission & 4 Others
    (2016) eKLR
  • Nightshade Properties Ltd –vs- The Registrar of Titles Mombasa and the Chief Land Registrar (Malindi ELC Petition No. 20 of 2015)
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

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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, "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.