Colfax Holdings Limited v National Land Commission
The bottom line
#Kenya's Environment and Land Court ordered the National Land Commission to pay Colfax Holdings KShs 359 million plus interest for land acquired in 2015 without prompt compensation.
What this practically means
#Executive summary
#Key legal issues
#Constitutional petition threshold
Petition satisfied Anarita Karimi Njeru threshold as it identified the violated articles, the violator and the manner of violation
The court applied Rule 10(1) of the Mutunga Rules and held the petition clearly pleaded articles 27, 40 and 47, named the NLC as the responsible institution and described the infringement as acquisition without prompt and just compensation.
Lawfulness of withholding compensation
Withholding was unlawful; none of the exceptions in article 40(6) or section 115 of the Land Act applied, and the injunction in ELC 405 of 2017 did not cover the suit properties
The court perused the ELC 405 of 2017 file and found the suit properties were not parties to nor listed in the injunctive orders. The adverse possession claim against the petitioner had been rejected in a ruling the court was persuaded by, and no proof existed that an award was offered and rejected.
Quantum of just compensation
Just compensation fixed at Kshs. 359,105,371 per the Commission's compensation schedule to KeNHA, not the petitioner's Kshs. 615,422,500 valuation
The court found the Burn and Fawcett valuation unconvincing for lack of comparables and explanation, noted the Commission is mandated to determine values, and observed the Commission did not disown the schedule. Acquisition should not be an opportunity for profit-making.
Commencement date of interest
Interest under section 117 of the Land Act runs from the date of taking possession, which was 2015, not 2014
Section 117 provides interest is payable from the time of taking possession until payment. The petitioner's letter of 15 June 2015 showed possession had not yet been taken as at that date, so interest was computed from 2015.
Legal principles established
#- A petitioner must set out with reasonable precision the violation alleged, the violator, the manner of violation and the constitutional provision infringed
- Where land is compulsorily acquired, full compensation must be paid promptly unless a statutory exception under section 115 of the Land Act applies
- Just compensation is that assessed and determined through the criteria set out under the Land Act; compulsory acquisition is not an opportunity for profit-making
- Submissions cannot take the place of evidence
Court orders
#- 1.A declaration that the Respondent has contravened Articles 2,3,10,25,27,28,40,43 and 47 of the Constitution by acquiring the suit properties and declining to make prompt payment of just compensation
- 2.An order compelling the Respondent to forthwith pay the Petitioner compensation in full of Kshs. 359,105,371 for parcels MN/VI/29437/63/65/66/67/68/69/70/71/72
- 3.Interest payable at Central Bank of Kenya Base Lending Rate under section 117 of the Land Act calculated from the year 2015 being the date of possession
- 4.Costs to the Petitioner
- Jurisdiction invoked
- Articles 22, 23(1) & (3) of the Constitution; Environment and Land Court jurisdiction over enforcement of fundamental rights relating to land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Colfax Holdings Limited v National Land Commission", Case Analysis (2023). Environment & Land Petition 3 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16005/eng@2023-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.