Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironment and Land Case Civil Suit 469 of 2016· [2022] KEELC 13800 (KLR)

Kenafric Bakery Limited v National Land Commission & 2 others

Environment and Land Court
3 October 2022
8,758 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~35 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
Kenafric Bakery Limited sued the National Land Commission, KeNHA and the Attorney General seeking Kshs 490,278,866/= as accrued interest at 18% per annum on compensation of Kshs 942,214,782/= awarded for the compulsory acquisition of LR No 13562/28 under Gazette Notice 16180 of December 23, 2011. The award was accepted on May 7, 2012 but paid in instalments, with the final tranche on February 11, 2015. The plaintiff contended that the delayed, staggered payment breached Section 8 of the repealed Land Acquisition Act and Article 40(3) of the Constitution. The defendants denied liability, KeNHA arguing the suit was barred by Section 67(b) of the Kenya Roads Act and that no interest was payable since it never took possession before full payment. The court framed two issues: limitation and entitlement to interest. It held the suit was statute barred on both limbs of Section 67(b) - the cause of action accrued on June 30, 2012 (deadline June 29, 2013) and, if a continuing injury, it ceased on February 11, 2015 (deadline August 10, 2015) - the suit having been filed on May 8, 2016. On the merits, it held that under Section 16(1) of the repealed Land Acquisition Act interest arises only where possession is taken before payment; here possession was never taken, the possession notice issued only on May 17, 2016, and the plaintiff remained in occupation and charged the title to a bank, making any award of interest double enrichment. The suit was dismissed with each party bearing its own costs.

Key legal issues

#
01

Limitation under Section 67(b) of the Kenya Roads Act

Holding

The suit was statute barred on both limbs of Section 67(b): the cause of action accrued on June 30, 2012 (12 months expired June 29, 2013) and, if a continuing injury, it ceased on February 11, 2015 (6 months expired August 10, 2015), while the suit was filed May 8, 2016

Reasoning

The court relied on the plaintiff's own pleading in paragraph 8 of the Plaint, which asserted that liability to pay interest accrued from June 30, 2012. On the first limb of Section 67(b), the 12-month period expired by June 29, 2013. Alternatively, treating the delayed payment as a continuing injury, the injury ceased with the last instalment on February 11, 2015, giving a deadline of August 10, 2015. The suit filed on May 8, 2016 was out of time on either computation.

p. 12
02

Entitlement to interest on delayed compensation under Section 16(1) of the repealed Land Acquisition Act

Holding

No interest was payable because the acquiring authority never took possession before full payment; the notice of taking possession was issued only on May 17, 2016, after full payment, and the plaintiff remained in possession and used the title

Reasoning

Section 16(1) of the repealed Land Acquisition Act triggers interest only where compensation is not paid before the taking of possession. Here the final tranche was paid on February 11, 2015, but possession was never taken; the notice of taking possession came on May 17, 2016, and the plaintiff remained in occupation, drew water from the borehole and charged the title to Fina Bank. Awarding interest would amount to double enrichment and be unconscionable.

p. 15
03

Applicable legal regime for the acquisition

Holding

The repealed Land Acquisition Act, not the Land Act 2012, governs the claim since the acquisition was concluded under the former

Reasoning

Following the reasoning in Five Star Agencies Ltd v National Land Commission as cited in Patrick Musimba, the court held that rights and obligations accrued under the repealed statute are saved by Section 23 of the Interpretation and General Provisions Act, so the repealed Land Acquisition Act supplies the principles governing compensation and interest.

p. 14

Legal principles established

#
  • Under Section 67(b) of the Kenya Roads Act, actions against a roads authority must be instituted within twelve months of the act, neglect or default, or within six months of the cessation of a continuing injury
  • A suit filed out of time is statute barred and the cause of action is extinguished
  • Interest on a compulsory acquisition award under Section 16(1) of the repealed Land Acquisition Act is payable only where the acquiring authority takes possession before payment of the compensation
  • The repealed Land Acquisition Act governs acquisitions concluded under it, not the Land Act 2012

Court orders

#
  1. 1.The Plaintiff's suit is dismissed
  2. 2.Each party to bear their own costs

Authorities

#

Legislation

  • Constitution of Kenya 2010Article 40(3); Article 10
  • Land Acquisition Act, Cap 295 (repealed)Sections 8, 16(1), 19
  • Kenya Roads ActSection 67(b)
  • Civil Procedure Act, Cap 21Section 26
  • Evidence Act, Chapter 80Sections 106, 107, 108, 109
  • Interpretation and General Provisions Act, Cap 2Section 23(3)
  • Limitation of Actions Act, Cap 22Section 4(1)(a)
  • Land Act, 2012

Cases cited (11)

  • Patrick Musimba versus National Land Commission & 4 Others
    (2016) eKLR

    That the repealed Land Acquisition Act governs compensation for acquisitions concluded under it, citing Five Star Agencies Ltd v National Land Commission

  • Attorney General versus Halal Meat Products Ltd
    (2016) eKLR

    Cited by the plaintiff on prompt payment of compensation

  • Willmary Development Ltd versus National Land Commission & Kenya National Highway Authority
    (2020) eKLR

    That claims against the authority under Section 67(b) of the Roads Act must be filed within twelve months, or six months for continuing injury

  • John Kibor Kipkorir (suing as the administrator of the Estate of William Kibor Ruto AKA Chibor Ruto/Kenya Rural Roads Authority
    (2018) eKLR

    That specific statutes like the Kenya Roads Act provide limitation periods and non-compliance ousts jurisdiction

  • Republic versus National Land Commission & Kenya National Highways Authority Ex-parte Registered Trustees of Simba Union Club
    (2022) eKLR

    Cited by the 2nd Defendant on limitation under the Roads Act

  • Sumac Development Company Ltd v George Munyui Kigathi & 2 Others
    (2017) eKLR

    Cited by the 2nd Defendant on limitation

  • Kiambu County Tenants Welfare Association versus Attorney General & Another
    (2017) eKLR

    Cited by the 2nd Defendant on proof of entitlement to interest

  • Broadway Enterprises Ltd versus Ministry of Land, Housing and Urban Development & 3 Others
    (2015) eKLR

    That interest rate is as prescribed or, if not prescribed, not less than six per cent

  • Deposit Protection Fund Board in Liquidation of Euro Bank Limited (In Liquidation) vs Rosaline Njeri Macharia & Another
    [2016] eKLR

    General consequences of limitation; suit filed outside the prescribed period is time barred

  • Five Star Agencies Ltd v National Land Commission
    (2014) eKLR

    That the repealed Land Acquisition Act applies to rights accrued before its repeal, per Section 23 of the Interpretation and General Provisions Act

  • Shanzu Investments Ltd vs Commissioner of Lands

    Award of interest at six per cent on compulsory acquisition compensation

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land and compulsory acquisition compensation claims

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, "Kenafric Bakery Limited v National Land Commission & 2 others", Case Analysis (2022). Environment and Land Case Civil Suit 469 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13800/eng@2022-10-03

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