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ELCAllowedEnvironment and Land Constitutional Petition 10 of 2022· [2023] KEELC 17617 (KLR)

Najmudin Noorali Mohamedali v Cabinet Secretary, Ministry of Defence & 4 others

Environment and Land Court of Kenya
10 May 2023
23,150 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~93 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ordered the government to pay over Kshs. 1.1 billion for unlawfully taking private land without proper notice or compensation.

What this practically means

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Executive summary

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The Petitioner, registered proprietor by transmission (via Kadhi's Court Succession Cause No. 174 of 2018) of two Mtongwe, Mombasa parcels totalling 8.2 acres originally registered to his late mother (d. 1973), petitioned the Environment and Land Court at Mombasa alleging that the Kenya Navy/Department of Defence had compulsorily acquired and occupied the land without due process or compensation, relying on Gazette Notices 3075 of 1977 and 3209 of 1978 and an award of 15th May 1979 paid six years after the registered owner's death. He sought declarations of invalidity, findings that Articles 40 and 47 were violated, compensation of Kshs. 750,000,000/- and exemplary damages. The Respondents maintained the acquisition followed the Land Acquisition Act (Cap 295), compensation was awarded and deposited in the High Court, the original parcels were subdivided in 1960, and the claim was time-barred under the Limitation of Actions Act; the NLC disclaimed any role, having not existed in 1977-79. Naikuni J held the Petition met the Anarita Karimi Njeru precision threshold and that the ELC had jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act. On the merits, the court found no notices were served on the owner (who had died in 1973), the gazette notices failed to disclose proprietors, no valid inquiry was held, and the 1979 award was not prompt compensation; the military's occupation was therefore wrongful and violated Articles 40 and 47. Judgment was entered for the Petitioner in all terms sought: declarations of invalidity and violation, Kshs. 750,000,000/- market value, Kshs. 37,500,000/- exemplary damages, Kshs. 350,000,000/- for loss and suffering, surrender of titles to the Government upon payment, and joint and several costs with 14% interest.

Key legal issues

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01

Whether the Petition met the constitutional pleading threshold

Holding

The Petition complied with the Anarita Karimi Njeru standard of reasonable precision and was properly founded on Articles 2, 3, 10, 19, 20, 21, 22, 23, 40, 47 and 258.

Reasoning

The court applied the principle that constitutional violations must be pleaded with reasonable precision, citing Mumo Matemu and Anarita Karimi Njeru. It found the Petition's legal foundations well articulated in paragraphs 24 to 37, and held the Petitioner had dutifully complied with the threshold for instituting the Petition against all five Respondents.

02

Whether the ELC had jurisdiction

Holding

The ELC had jurisdiction under Article 162(2)(b) and Section 13 of the Environment and Land Court Act, including over compulsory acquisition of land and related constitutional violations.

Reasoning

The court traced its jurisdiction to Article 162(2)(b) of the Constitution and Section 13 of the ELC Act, which confers power over disputes relating to compulsory acquisition of land, title and land administration, and to grant relief including compensation and declarations. Sections 101 of the Land Registration Act and 150 of the Land Act reinforced this mandate.

p. 32
03

Whether the compulsory acquisition was lawful

Holding

The acquisition was unlawful: no notices were served on the registered owner (who had died in 1973), the gazette notices did not disclose proprietors, no valid inquiry was held, and compensation paid six years after the owner's death was not prompt or valid compensation.

Reasoning

The court found the gazette notices failed to disclose the names of proprietors and referred to properties that did not belong to the Petitioner's mother, the registered proprietor who had died in 1973. No proof of service of notices was shown. The award of 15th May 1979, over six years after her death, could not constitute prompt compensation under Article 40(3)(b) and Section 8 of the repealed Land Acquisition Act. The Petitioner still held the original titles.

p. 41
04

Whether the Petitioner's rights under Articles 40 and 47 were violated

Holding

The State's forceful occupation of the land without due process or compensation violated the Petitioner's property rights and right to fair administrative action.

Reasoning

The court held that the military forcefully occupied the suit properties, wrongfully, illegally and unlawfully acquiring them without compensation, trampling the Petitioner's rights under the Land Act, 2012 and the Constitution. Denial of enjoyment of the land and of prompt compensation for over forty years defeated the spirit of Article 47 on expeditious, lawful and procedurally fair administrative action.

p. 43
05

Entitlement to remedies

Holding

The Petitioner was entitled to the reliefs sought: declarations, Kshs. 750,000,000/- market value, Kshs. 37,500,000/- exemplary damages and Kshs. 350,000,000/- for loss and suffering, plus costs and interest.

Reasoning

Relying on Article 23 and the principle of equivalence in Patrick Musimba, the court held just compensation must equate restitution of the owner's pecuniary loss. Exemplary damages were justified for oppressive, arbitrary and unconstitutional state action per Katra Jama Issa and Rookes v Barnard. The court entered judgment in all the terms sought in the Petition.

p. 44

Legal principles established

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  • Compulsory acquisition of land requires strict adherence to statutory procedure including notice to interested persons; failure renders the acquisition flawed
  • Compensation for compulsory acquisition must be prompt, full and just; payment made years after the registered owner's death is not valid compensation
  • The burden of proving service of the notice of inquiry falls on the acquiring authority
  • Constitutional violations must be pleaded with a reasonable degree of precision (Anarita Karimi Njeru standard)

Court orders

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  1. 1.Judgment entered in favour of the Petitioner in terms of the reliefs sought in the Constitution Petition dated 23rd February, 2022
  2. 2.Declaration that the compulsory acquisition of 8.2 acres of the Petitioner's land without adhering to the Land Acquisition Act (repealed) violated Article 40(3)(a) & (b) of the Constitution
  3. 3.Declaration that the purported gazettement via Gazette Notice Nos. 3075 of 28th October 1977 and GN 3209 of 10th October 1978 did not take place and, if it did, was null and void ab initio for want of due process
  4. 4.Declaration that any document of title emerging from the said gazettement is null and void ab initio
  5. 5.Declaration that the unilateral award of compensation dated 15th May 1979, more than six years after the death of the registered owner, cannot be regarded as compensation under Article 40(3)(b) and Section 8 of the Land Acquisition Act
  6. 6.Declaration that the Petitioner's rights under Articles 40(1), 40(2)(a), 40(3)(b)(i), 47(1) and 47(2) were contravened and infringed
  7. 7.Declaration that the Petitioner's proprietary interests over CR 400 Plot No. 77/IV/MS (2.0 acres) and CR 2117/Plot No. 81/IV/MS (6.2 acres) were compulsorily acquired by the State
  8. 8.Award of Kshs. 750,000,000/- as current market value of the suit land
  9. 9.Award of Kshs. 37,500,000/- as general (exemplary/punitive) damages being 5% of the quantified damages
  10. 10.Award of Kshs. 350,000,000/- for loss and suffering on the unconstitutional and unlawful cancellation of title documents
  11. 11.Direction that upon payment the Petitioner immediately surrender all original Certificates of Title to the Government through the Attorney General's office for proper registration
  12. 12.1st to 5th Respondents jointly and severally to pay costs of the suit plus interest at 14% per annum from the date of judgment until payment in full

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 3, 10, 19, 20, 21, 22, 23, 258, 259, 27, 40, 47, 60, 67, 159, 162, 165
  • Land Acquisition Act (repealed), Cap 295Sections 3, 4, 6, 7, 8, 9(1), 11, 13, 16, 19, 20
  • Land Act, No. 6 of 2012Sections 107, 111, 113, 114, 142(2), 150
  • Environment and Land Court Act, No. 19 of 2011Section 13
  • Land Registration Act, No. 3 of 2012Section 101
  • Limitation of Actions ActSections 7, 9
  • Government Proceedings Act, Chapter 21
  • Fair Administrative Actions ActSection 4(3)
  • National Land Commission Act, 2012
  • Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice Rules, 2006
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 26(1) and (2)
  • Registered Land Act
  • Land Titles Ordinance/Act
  • Land (Assessment of Just Compensation) Rules, 2017

Cases cited (21)

  • Mathatani Limited v Commissioner of Lands & 5 others
    [2013] eKLR

    Requirements of Constitution and Land Acquisition Act on notice, service of inquiry notice and burden of proof not complied with

  • Isaiah Otiato & 6 others v County Government of Vihiga
    (2018) eKLR

    Completion of compulsory acquisition process by taking possession and vesting

  • Attorney General v Zinj Limited
    (Petition 1 of 2020) [2021] KESC 23 (KLR) (Civ)(3 December 2021)

    Acquisition is compulsory where Government uses coercive powers to deprive property in disregard of the Constitution

  • Patrick Musimba v National Land Commission & 4 others
    [2016] eKLR

    Principle of equivalence; just compensation must be prompt, in full and equate restitution

  • Ratcliffe v Evans
    (1892) QB 524

    Degree of certainty and particularity required in pleading and proof of damage

  • Commissioner of Lands & Another v Coastal Aquaculture Ltd
    C.A. 252/96; Civil Appeal No. 252 of 1996 KLR (E&L 264)

    Notice of acquisition must reflect necessary ingredients; strict adherence to Constitution and Land Acquisition Act

  • Arnacherry Limited v Attorney General
    (2014) eKLR

    State should not engage in forceful take-over of property without due compensation

  • Ravaspaul Kyalo Mutisya v National Land Commission
    eKLR

    Interests accruing from delay in compensation payment should be paid from institution of suit

  • Katra Jama Issa v Attorney General & 3 others
    [2018] eKLR

    Exemplary damages for oppressive, arbitrary or unconstitutional action by government servants

  • Rookes v Barnard
    (1964) 1 All ER 367

    Two classes of cases where exemplary damages may be awarded

  • Town Council of Awendo v Nelson O Onyango & 13 others; Abdul Malik Mohamed & 178 others (Interested Parties)
    [2019] eKLR

    No rights or interests retained in land after compulsory acquisition

  • Mumo Matemu v Trusted Society of Human Rights Alliance & Another
    (2013) eKLR

    Standards of proof in constitutional petitions

  • Anarita Karimi Njeru v Republic
    [1980] eKLR 154

    Constitutional violations must be pleaded with reasonable precision

  • Thorp v Holdsworth
    (1886) 3 Ch. D 637

    Object of pleadings is to define and narrow issues

  • Adan Abdirahani Hassan and 2 others v The Registrar of Titles and others
    Nairobi Petition No. 7 of 2012 [2013] eKLR

    Legitimate expectation to a hearing before administrative action affecting property

  • Viranda Ramji Gudka & 3 others v The AG
    (2014) eKLR

    Statutory framework governing compulsory acquisition of interest in land

  • Horn v Sunderland Corporation
    [1941] 2 KB 26, 40

    Compensation must completely make up the seller's loss (cited within Musimba)

  • Director of Buildings and Lands v Shun Fung Wouworks Ltd
    [1995] AC 111, 125

    Compensation for value of land to the owner (cited within Musimba)

  • Reference No. 1 of 2014, Council of Governors v the Senate & another
    [2014] eKLR

    Costs discretion must be exercised judicially, not whimsically

  • Reids Heweet & Company v Joseph
    AIR 1918 cal. 717

    Costs follow the event; costs of particular issues go to the successful party

  • Myres v Defries
    (1880) 5 Ex. D. 180

    Costs follow the event principle

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, No. 19 of 2011; Articles 22, 23 and 258 of the Constitution

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, "Najmudin Noorali Mohamedali v Cabinet Secretary, Ministry of Defence & 4 others", Case Analysis (2023). Environment and Land Constitutional Petition 10 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17617/eng@2023-05-10

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