Mombasa West Limited v National Land Commission, Attorney General & Kenya National Highways Authority (Environment & Land Case 36 of 2021) [2022] KEELC 1188 (KLR)
The bottom line
#Kenyan court ruled land taken for a road project without proper notice violates owners' rights, entitling them to fair compensation for the acquired portion.
What this practically means
#Executive summary
#Key legal issues
#Applicability of Section 67 Kenya Roads Act notice to constitutional petitions
The statutory pre-suit notice applies only to ordinary civil claims, not to petitions alleging violation of Bill of Rights freedoms.
The court noted a conflict in authorities: Nyaguti upheld the notice requirement, but Njane held it limited to ordinary civil claims. The court adopted the latter view, reasoning that constitutional petitions alleging rights violations should not be fettered by the statutory notice requirement.
Compliance with the Land Act compulsory acquisition procedure
The 1st Respondent failed to publish and serve the notice of intention to acquire and the notice of inquiry on the Petitioner, and did not conduct due diligence, rendering the acquisition procedurally flawed.
The gazette notice did not indicate the name of the registered owner; the Petitioner was never served with the notice of intention to acquire under Section 107(5) nor with the notice of inquiry. The Respondents filed no evidence to controvert these assertions, so the Petitioner's evidence went unchallenged, and the Petitioner was condemned unheard contrary to natural justice.
Just compensation under Article 40(3)
The Petitioner is entitled to prompt, just and adequate compensation in full for the acquired portion only, quantified on the principle of equivalence; the claimed sums were unsupported by a valuation report.
Relying on Patrick Musimba and the Supreme Court in Zinj Limited, the court held that acquisition must be preceded by proper notice, stated public purpose, and prompt full just compensation. However, absent a valuation report, the court could not assume the pleaded Kshs. 60,000,000 value and could not order compensation for the unacquired remainder.
Exemplary damages
Exemplary damages were refused because the acquisition was for a public purpose and the Respondents' conduct was neither oppressive nor self-benefiting.
Applying Rookes v Barnard, exemplary damages lie for oppressive, arbitrary or unconstitutional state action or conduct calculated to procure benefit at the plaintiff's expense. The acquisition was for the dualling of a public road, so neither ground was established.
Legal principles established
#- The notice requirement under Section 67 of the Kenya Roads Act does not apply to petitions or applications brought under the Bill of Rights.
- Failure to serve the statutory notices of intention to acquire and of inquiry renders a compulsory acquisition procedurally flawed and violates the owner's right to be heard and right to property.
- A person whose land is compulsorily acquired is entitled to prompt, just and adequate compensation in full for the acquired portion only.
Court orders
#- 1.A declaration that the Petitioner's rights under Articles 40(3) and 47(1) of the Constitution and Part VIII of the Land Act No 6 of 2012, Sections 107, 108, 111, and 112 have been and continue to be infringed
- 2.A declaration that the compulsory acquisition of 0.1069 ha of the Petitioner's parcel MN/V/3806 without adhering to the mandatory provisions of the Constitution and Land Act, 2012 violated the Petitioner's right under Article 40
- 3.The Petitioner is entitled to prompt, just and adequate compensation in full within the meaning of Article 40(3)(b)(i) for the acquired portion only
- 4.Costs of the Petition awarded to the Petitioner, to be borne by the Respondents
- Jurisdiction invoked
- Articles 40(3) and 47(1) of the Constitution of Kenya, 2010 and Part VIII of the Land Act No. 6 of 2012
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.
Cite this brief
#Cite this brief
Caselaw, "Mombasa West Limited v National Land Commission, Attorney General & Kenya National Highways Authority (Environment & Land Case 36 of 2021) [2022] KEELC 1188 (KLR)", Case Analysis (2022). ELC Petition No. 36 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1188/eng@2022-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.