Shamsudin Khosla & 2 others v Kenya National Highways Authority & another [2021] KEELC 4373 (KLR)
The bottom line
#Kenya's land court allowed the Mombasa-Mariakani road acquisition to proceed but ordered the National Land Commission to issue the owners' compensation award within 21 days.
What this practically means
#Executive summary
#Key legal issues
#Compliance with the notice requirements for compulsory acquisition under Sections 107 and 112 of the Land Act, 2012
The court found compliance: notices of intention to acquire and notices of inquiry were duly gazetted for all three properties, the corrigenda curing earlier omissions, and the omission of an owner's name does not invalidate a notice.
The court examined Gazette Notices No. 9343 of 2015, 1388 and 1389 of 2017 and 5266 of 2018. The first notice stated the purpose of acquisition as required by Section 107(5A); the corrigenda cured omissions of plot numbers and owner names. The inquiry notice gave the required notice of dates and places. Defects such as missing plot numbers or owner names did not render the process invalid.
Failure to make an award under Section 113 and notify parties under Section 114
No award had been made in respect of the suit properties, entitling the petitioners to an order compelling the 2nd respondent to make and notify the award.
The respondents were silent on the award; none was exhibited in their affidavits despite Section 113(4) requiring awards to be filed with the Commission. Without an award, payment of compensation cannot occur. This was the only respect in which the acquisition process fell short, and the court therefore ordered the Commission to make and notify its award within 21 days.
Whether to issue permanent injunctions stopping the acquisition
Permanent injunctions refused as the road project was likely under way and it would not be in the public interest to stop it while compensation was sorted out.
The court noted the time the petition had taken and the public interest in the road project. The proper remedy was to compel the statutory award process rather than halt the acquisition, since compensation flows from the award itself.
Legal principles established
#- The current law on compulsory acquisition is contained in Part VIII of the Land Act, 2012; the Land Acquisition Act (Cap. 295) was repealed
- Strictly, the law does not require the name of the owner to be published in a notice of intention to acquire land
- Once property is compulsorily acquired there is no reverse mechanism; the only recourse is a right to compensation (as urged by the 2nd respondent)
- Without an award under Section 113, payment of compensation under Section 115 cannot take place
Court orders
#- 1.That the 2nd respondent is hereby ordered to make an award over the properties MN/VI/2552, MN/VI/2920 and MN/VI/3028 and notify the petitioners of its award within the next 21 days.
- Jurisdiction invoked
- Constitutional petition under the Constitution (rights to property under Article 40 invoked) before the Environment and Land Court
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.
- Alba Petroleum Limited v National Land Commission & 4 others (Constitutional Petition 36 of 2022) [2024] KEELC 1267 (KLR)[2024] KEELC 1267 (KLR)26 Feb 2024
Cite this brief
#Cite this brief
Caselaw, "Shamsudin Khosla & 2 others v Kenya National Highways Authority & another [2021] KEELC 4373 (KLR)", Case Analysis (2021). Mombasa ELC Petition (judgment does not print the petition number in the extracted text). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4373/eng@2021-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.