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ELCPartially AllowedConsolidated Constitutional Petitions Nos. 51, 52, 53, 54 and 55 of 2019· [2022] KEELC 2746 (KLR)

African Gas and Oil Co Limited & 4 others v National Land Commission & another (Environment & Land Petition 51, 52, 53, 54 & 55 of 2019 (Consolidated)) [2022] KEELC 2746 (KLR)

Environment and Land Court
4 July 2022
11,770 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (Naikuni J) gives directions in five consolidated constitutional petitions (Nos. 51-55 of 2019) filed by five limited liability companies against the National Land Commission (NLC), together with a counterclaim by the 2nd respondent, Kahia Transporters Limited. The disputes concern the compulsory acquisition of parcels in Miritini, Mombasa for the Mombasa southern bypass (MPARD/Kipevu link road) and standard gauge railway projects. The petitioners claimed they were never fully compensated despite the projects being complete, invoking articles 40(3) and 47 of the Constitution; the NLC maintained due process was followed and awards prepared but uncollected; Kahia counterclaimed, asserting overlapping/boundary disputes with the petitioners' parcels and non-compensation for its own land taken by the projects. The court framed seven issues and held that the petitions met the Anarita Karimi Njeru precision threshold; that the petitioners and Kahia were entitled to full, prompt and just compensation under article 40(3) and Part VIII of the Land Act; that the ownership conundrum had to be resolved before final assessment, invoking section 173(1) of the Evidence Act to order a locus visit and independent surveys; and that related pending suits should be consolidated before the ELC. The court directed NLC to pay Kshs 2,454,746,506.58 to the petitioners' advocates within 30 days, and Kshs 1,421,440,000.00 into a joint escrow account pending survey, fresh valuation reports and further orders. Both sides having partially succeeded, each party was to bear its own costs.

Key legal issues

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01

Constitutional substratum of the petitions and counterclaim

Holding

The further amended petitions and the counterclaim met the threshold of reasonable precision in pleadings; the counterclaim was allowed to be amended rather than struck out.

Reasoning

Applying Anarita Karimi Njeru, the court found the petitioners pleaded their claims with reasonable particularity. Guided by article 50(1) and article 159(d) of the Constitution, the court declined to strike out the 2nd respondent's counterclaim for not conforming to the constitutional substratum and instead granted leave to amend.

p. 14
02

Compulsory acquisition and entitlement to compensation

Holding

Both the petitioners and the 2nd respondent were entitled to full, fair, prompt and just compensation for the compulsory acquisition of their parcels for the Mombasa southern bypass and SGR projects.

Reasoning

The court set out the statutory framework under part VIII of the Land Act (sections 107-133) and article 40(3) of the Constitution, holding that just compensation based on market value and the principle of equivalence is mandatory. Land had been taken and projects completed, yet payment remained outstanding, entitling the parties to compensation.

p. 13
03

Assessment of market value

Holding

Just compensation is based on the market value of the land; the NLC failed to explain how it arrived at its award, while the petitioners' valuation was flawed for covering both SGR and bypass projects; fresh valuation reports were ordered.

Reasoning

The court held market value is what a property is worth in the open market based on comparable sales, not mere personal opinion. NLC annexed awards but no valuation report; petitioners' claim was inflated by covering two projects. Parties were directed to file fresh valuation reports within 60 days assessing value at the time of gazettement.

p. 17
04

Determination of ownership and boundary dispute

Holding

The ownership conundrum could not be resolved without further evidence; the court invoked section 173(1) of the Evidence Act to order a site visit and survey by the government coast land surveyor and independent surveyors.

Reasoning

Kahia claimed the petitioners' land overlapped its parcel 5169/VI/MN. Because ownership was challenged, the court could not casually dismiss the claim, and paying compensation before ownership was settled might cause injustice. The court ordered a survey and site visit before making a final judgment.

p. 13
05

Consolidation of related pending suits

Holding

All nine pending cases touching on the subject land were to be placed before the ELC at Mombasa for hearing and determination within 90 days to avoid multiplicity of suits and contradictory judgments.

Reasoning

The 2nd respondent identified several pending suits over the same subject land. The court held that all cases touching on the suit property should be availed to the presiding judge for directions to avoid multiplicity of suits and contradictory judgments.

p. 15
06

Costs

Holding

As the petitioners and the 2nd respondent partially succeeded, each party was to bear its own costs.

Reasoning

Applying section 27(1) of the Civil Procedure Act that costs follow the event, the court noted both the petitioners and the 2nd respondent had only partially succeeded, and therefore each party would bear its own costs.

p. 19

Legal principles established

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  • Just compensation for compulsory acquisition is mandatory, must be prompt, in full, and based on the principle of equivalence
  • Compulsory acquisition of land by the state is a creature of statute and must be exercised with circumspection, with a presumption against interference with vested property rights
  • Constitutional protection of property under article 40 does not extend to property unlawfully acquired
  • Constitutional petitions must be pleaded with a reasonable degree of precision

Court orders

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  1. 1.The National Land Commission directed to pay Messrs AA Said & Company Advocates Kshs 2,454,746,506.58 within thirty (30) days out of the assessed compensation for the five compulsorily acquired parcels measuring approximately 88.61 acres
  2. 2.The law firms of A.A Said & Company Advocates, Mogaka, Omwenga & Mabeya Advocates and the NLC to open a joint escrow bank account into which the NLC is to deposit Kshs 1,421,440,000.00 within thirty (30) days pending the outcome of the land surveying exercise, site visit and further orders
  3. 3.All pending nine (9) cases touching on the subject land, including Mombasa ELC Case No 405 of 2017, to be brought under and placed before the Environment and Land Court at Mombasa, to be heard and determined within ninety (90) days, with a mention on September 26, 2022 for pre-trial conference, site visit and further directions
  4. 4.Pursuant to section 173(1) of the Evidence Act and Order 18 rule 11 of the Civil Procedure Rules, 2010, the court to conduct a site visit (locus in quo) within thirty (30) days, with the parties at liberty to engage the coast regional surveyor, land registrar and their own independent surveyors to ascertain the size of parcels MN/VI/4948 and MN/VI/5169 affected by the SGR and bypass
  5. 5.Each survey expert to prepare comprehensive and detailed reports to be served upon parties and filed in court
  6. 6.The petitioners and the 2nd respondent at liberty to engage qualified land valuers to prepare and file fresh land valuation reports within thirty (30) days of the order
  7. 7.All reports under the survey and valuation orders to be formally presented in court for adoption for purposes of final tabulation and assessment of compensation
  8. 8.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 20(1)(2)&(3)(b), 22, 23(1)(3), 25(c), 40(1)(2)(3)(6), 47, 50(1), 64, 67(2), 159(d), 162(2)(b), 165(3)(d)&5, 259(1)
  • Land Act, No. 6 of 2012Sections 9(1), 107, 107(2)(3)(5)(8), 108, 110(1), 111(2), 112, 112(2)(5), 113, 114, 117, 120-122, 142(2), Part VIII (107-133)
  • Land (Assessment of Just Compensation) Rules, 2017Rules 3, 4 and 6; Part V Land Regulations 2017
  • Evidence Act, Cap 80Section 173(1)
  • Civil Procedure Act, Cap 21Section 27(1)
  • Civil Procedure Rules, 2010Order 18 rule 11
  • Companies Act
  • National Land Commission Act, Act No. 5 of 2012

Cases cited (21)

  • Patrick Musimba v National Land Commission & 4 others [2016] eKLR
    [2016] eKLR
  • Kanini Firm Limited v Commissioner of Lands [1996] KLR 1
    [1996] KLR 1
  • Hellen Wachuka Njoroge v Attorney General & another [2016] eKLR
    [2016] eKLR
  • Kenya Revenue Authority v Mohamed Saleh & Company Limited [2019] eKLR
    [2019] eKLR
  • Five Star Agencies Limited v National Land Commission [2014] eKLR
    [2014] eKLR
  • Isabel Waithera Njoroge v Ministry of State for Provincial Administration and Internal Security & 4 others [2014] eKLR
    [2014] eKLR
  • Multiple Hauliers East Africa Limited v Attorney General & 10 others [2013] eKLR
    [2013] eKLR
  • Attorney General v Zinj Limited (Petition No 1 of 2020, Supreme Court of Kenya)
    Petition No 1 of 2020
  • Nightshade Properties Limited v NLC & 3 others [2021] eKLR (Petition No 33 of 2019, Malindi ELC)
    [2021] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & another [2013] eKLR
    [2013] eKLR
  • Anarita Karimi Njeru v Republic [1980] eKLR 154
    [1979] eKLR; [1980] eKLR 154
  • Thorp v Holdsworth [1886] 3 Ch. D 637
    [1886] 3 Ch. D 637
  • Viranda Ramji Gudka & 3 others v The AG (2014) eKLR
    (2014) eKLR
  • Nas Auto Spares v Land Acquisition & Compensation Tribunal & 2 others (2015) eKLR
    (2015) eKLR
  • Horn v Sunderland Corporation [1941] 2 KB 26
    [1941] 2 KB 26,40
  • William Musembi & 13 others v Moi Educational Centre Co Limited & 3 others [2021] eKLR
    [2021] eKLR
  • Director of Buildings and Lands v Shun Fung Wouworks Ltd [1995] AC 111
    [1995] AC 111,125
  • Kanini Farm Limited v Commissioner of Lands [1986] KLR 310
    [1986] KLR 310
  • John Kariuki Macharia v Commissioner of Lands [2014] eKLR
    [2014] eKLR
  • Reids Heweet & Company v Joseph AIR 1918 cal. 717
    AIR 1918 cal. 717
  • Myres v Defries [1880] 5 Ex D 180
    [1880] 5 Ex D 180
Jurisdiction invoked
Article 165(3)(d) and 5 as read with article 162(2)(b) of the Constitution of Kenya, 2010

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, "African Gas and Oil Co Limited & 4 others v National Land Commission & another (Environment & Land Petition 51, 52, 53, 54 & 55 of 2019 (Consolidated)) [2022] KEELC 2746 (KLR)", Case Analysis (2022). Consolidated Constitutional Petitions Nos. 51, 52, 53, 54 and 55 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2746/eng@2022-07-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.