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ELCPartially AllowedMombasa ELC Petition (judgment does not print the petition number in the extracted text)· [2021] KEELC 4373 (KLR)

Shamsudin Khosla & 2 others v Kenya National Highways Authority & another [2021] KEELC 4373 (KLR)

Environment and Land Court
10 February 2021
5,444 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The petitioners, registered proprietors of three land parcels in Changamwe, Mombasa County (MN/VI/2552, MN/VI/2920 and MN/VI/3028), petitioned against the intended compulsory acquisition of their properties for the dualling of the Mombasa-Mariakani Road (A109) by the Kenya National Highways Authority and the National Land Commission. They complained that the statutory process under the Land Act, 2012 was not followed, that gazette notices contained defective particulars, that they were denied survey plans and valuation information, and that they had received no compensation, in breach of their right to property under Article 40. They sought declarations of indefeasible title, declarations that the acquisition was invalid and ultra vires, permanent injunctions, and compensatory damages. The court reviewed the gazette notices and found that the requirements of Sections 107 and 112 of the Land Act were substantially complied with; the corrigenda cured earlier omissions, and omission of an owner's name does not by itself invalidate a notice. However, the respondents had made no award under Section 113 nor notified the petitioners of any award under Section 114, without which compensation cannot be paid. The court declined the declarations and permanent injunctions, holding it would not be in the public interest to stop the road project, and declined damages as the statutory award would naturally provide compensation. The court noted unresolved issues over Plot No. 2552, subject of Mombasa ELC Petition No. 41 of 2013, and the interest of Kenya Railways Corporation as head lessor of Plot No. 2920. The sole substantive order compelled the 2nd respondent to make and notify its award over the three properties within 21 days, with each party bearing its own costs.

Key legal issues

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01

Compliance with the notice requirements for compulsory acquisition under Sections 107 and 112 of the Land Act, 2012

Holding

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.

Reasoning

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.

p. 5
02

Failure to make an award under Section 113 and notify parties under Section 114

Holding

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.

Reasoning

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.

p. 5
03

Whether to issue permanent injunctions stopping the acquisition

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40; Article 40(2)
  • Kenya Roads ActSection 23
  • Land Act, 2012Sections 107, 107(4)(a), 107(5A), 112, 112(2), 113, 113(4), 114, 115, 118, 120, 122, 128; Part VIII
  • Land Acquisition Act (Cap. 295)referred to as repealed
  • Land Control Act (Cap. 302)Section 6
Jurisdiction invoked
Constitutional petition under the Constitution (rights to property under Article 40 invoked) before the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.