Drum Major Properties Limited v Kenya National Highways Authority & another; Nyange (Interested Party)
The bottom line
#A Kenyan court allowed KeNHA to withhold Kshs 49 million in land compensation because an unresolved ownership dispute between a director and his ex-wife was pending.
What this practically means
#Executive summary
#Key legal issues
#Whether the NLC was justified in withholding the compensation award
Yes - Section 115(c) of the Land Act permits withholding where there is a dispute as to entitlement or shares, and the Interested Party's pending matrimonial property claim (Nairobi HC OS No 37 of 2013) constitutes such a dispute.
The court found no dispute that the owner was entitled to the assessed sum; the dispute was over ownership. The Interested Party claimed joint acquisition of the property in 2004 during her marriage to the Plaintiff's majority shareholder, a claim pending before the family court. The Defendants agreed payment could not be made until that dispute was resolved. Section 115(c) expressly excepts such disputes from the duty of prompt payment.
Whether the Plaintiff was entitled to the injunction and to compel payment
No - the Plaintiff concealed material facts, including the pending matrimonial suit and an injunction restraining its director from dealing with the property, and filed suit in bad faith.
The court found that from as early as 2018 the Interested Party had objected in writing to payment to the Plaintiff, and had obtained an injunction restraining Mutuku Kilewe from dealing with the suit property in Civil Suit No XX of 2013 (OS). The Plaintiff disclosed neither fact and did not join the Interested Party initially. This non-disclosure disentitled the Plaintiff to equitable relief and justified dismissal.
Whether the Defendants should take possession of the suit property
Yes - having valued the property and sought to proceed with the project, the Defendants were allowed to take vacant possession given the public interest in timely completion of the road.
The 1st Defendant demonstrated the need to complete the project in time to avoid detrimental contractual consequences prejudicial to the taxpayer. Having sought to be allowed to proceed with construction, and the compensation having been assessed and preserved, the court ordered the Defendants to take vacant possession of the suit property.
Legal principles established
#- Where there is a dispute as to the right of persons entitled to compensation or as to the shares in which compensation is to be paid, the National Land Commission is not obligated to pay until the dispute is determined (Section 115(c) of the Land Act).
- Deprivation of property through compulsory acquisition must be accompanied by prompt, full and just compensation under Article 40 of the Constitution and the Land Act.
Court orders
#- 1.The Plaintiff's suit is dismissed with costs to the Defendants and the Interested Party
- 2.The Defendants are to take vacant possession of the suit property to allow completion of the road project
- Jurisdiction invoked
- Article 40 of the Constitution and the Land Act (compulsory acquisition and compensation); Environment and Land Court jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Drum Major Properties Limited v Kenya National Highways Authority & another; Nyange (Interested Party)", Case Analysis (2023). Environment & Land Case E014 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15784/eng@2023-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.