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ELCAllowedConstitutional Petition 24 of 2019· [2023] KEELC 17813 (KLR)

Geyser International Assets Limited v National Land Commission

Environment and Land Court at Mombasa
10 May 2023
6,012 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~24 min to read original · ~4 min brief

The bottom line

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Kenya's land court ordered the National Land Commission to pay Kshs 96.5 million compensation for SGR-acquired land, holding six years of delay unconstitutional.

What this practically means

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Executive summary

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The Environment and Land Court at Mombasa (L.L Naikuni, J) allowed an undefended constitutional petition by Geyser International Assets Limited against the National Land Commission. The Petitioner, registered owner of Plot No. MN/VI/3892, complained that 1.089 ha of its land was compulsorily acquired in 2016 for the Mombasa–Nairobi Standard Gauge Railway; the Respondent made an award of approximately Kshs 96.5 million on 23 October 2017, which the Petitioner accepted, but the Commission never paid despite demand letters and notice of intention to sue. The Respondent was served but neither entered appearance nor filed a response. The Court framed three issues: jurisdiction, whether the Petition met the constitutional pleading threshold and had merit, and costs. Relying on Owners of the Motor Vessel 'Lillian S' and Samuel Kamau Macharia, it found jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act, compulsory acquisition disputes being expressly covered. Applying Anarita Karimi Njeru as affirmed in Mumo Matemu and Communications Commission of Kenya, it held the Petition was pleaded with sufficient precision. On the merits, the Court held that under Article 40(3)(b)(i) and Sections 111 and 115 of the Land Act, compensation must be paid promptly - defined as not more than one year after taking possession - and that the acquiring authority must deposit compensation funds before acquisition. A delay exceeding six years breached the Constitution. Judgment was entered for the Petitioner with declarations of contravention and abuse of statutory power, an order to pay Kshs 96,546,262 within ninety days, interest at commercial rates, and costs to the Petitioner.

Key legal issues

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01

Jurisdiction of the ELC over non-payment of compulsory acquisition compensation

Holding

The Court has jurisdiction: the dispute relates to compulsory acquisition of land under Section 13(2)(b) of the ELC Act and Article 40 property rights

Reasoning

The Court traced its jurisdiction to Article 162(2)(b) and Section 13 of the ELC Act, which confers power over disputes relating to compulsory acquisition of land. It noted the Petitioner's ownership, the acquisition of 1.089 ha for the SGR, the undisputed award, and that the only issue was non-payment, which is a constitutional question under Article 40.

p. 7
02

Whether the Petition met the Anarita Karimi Njeru threshold

Holding

The Petition met the threshold, disclosing the rights violated, the constitutional provisions and the manner of violation

Reasoning

Applying Anarita Karimi Njeru as affirmed in Mumo Matemu and Communications Commission of Kenya, the Court found the Petition clearly pleaded violation of the right to property under Article 40 through non-payment of the awarded compensation, and that prompt payment of compensation is a constitutional question.

p. 9
03

Whether failure to pay the awarded compensation within the statutory period violated Article 40(3)(b)(i)

Holding

Yes; more than six years' delay in paying the undisputed award was unreasonable and breached Article 40(3)(b)(i) of the Constitution and Sections 111 and 115 of the Land Act

Reasoning

The Court held that compensation must be paid promptly, defined as not more than one year after taking possession. The land was taken in 2016/2017, the award made on 23 October 2017 and accepted, yet payment had not been made over six years later. The Respondent also failed to ensure funds were deposited before acquisition, following Modern Coast Builders.

p. 11

Legal principles established

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  • Just compensation for compulsorily acquired land must be paid promptly, defined by the Land Act as within a reasonable time and in any case not more than one year after taking of possession
  • The acquiring authority must deposit compensation funds with the Commission before the acquisition is undertaken, and failure to do so before taking possession breaches Article 40(3)(b)(i)

Court orders

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  1. 1.Judgment entered in favour of the Petitioner as prayed with costs
  2. 2.Declaration that the Respondent contravened the Constitution and its actions are unlawful
  3. 3.Declaration that the Respondent abused its statutory powers in refusing to promptly compensate the Petitioner
  4. 4.Order directing the Respondent to compensate the Petitioner Kshs 96,546,262.00 as per the award dated 23rd October 2017 within ninety (90) days from the date of delivery of the judgment
  5. 5.Order that the Petitioner is entitled to interests and any other damages applicable in law on the compensation from the date provided in law until payment in full at commercial rates
  6. 6.Costs of the Petition awarded to the Petitioner, to be borne by the Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 3, 4, 10, 19, 20, 22, 23, 25, 27, 28, 40, 42, 47, 65, 67, 69, 70, 162(2)(b), 258
  • Environment and Land Court Act, No. 19 of 2011Section 13
  • National Land Commission Act, No. 5 of 2012Section 30
  • Land Act, No. 6 of 2012Sections 2, 107(1), 111(1), 111(1A), 115, 128, 133(A), Part VIII
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rules 14(1) & (2), 15(1), (2)(a)(i) & (ii), (b) & (3), 16(1) & (2), 26(1)
  • Government Proceedings ActNotice of intention to sue
  • Fair Administrative Action ActGeneral reference

Cases cited (12)

  • Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    (1989)

    Jurisdiction is everything; a court without jurisdiction must down its tools

  • Samuel Kamau Macharia v KCB & 2 Others
    Civil Application No. 2 of 2011

    A court's jurisdiction flows from the Constitution or legislation and cannot be arrogated

  • Anarita Karimi Njeru v The Republic
    (1976-1980) KLR 1272

    Standard of precision in drafting constitutional petitions

  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR

    Affirmation of the Anarita Karimi Njeru precision principle

  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 Others
    [2014] eKLR

    Necessity of a link between aggrieved party, constitutional provisions and contravention

  • Commissioner of Lands v Essaji Jiwaji & Public Trustee
    [1978] eKLR

    On compulsory acquisition, property vests in the Government; previous owner merely loses title

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

    Presumption against interference with vested property rights

  • Modern Coast Builders & Contractors Limited v National Land Commission
    [2021] eKLR

    Duty of NLC to ensure compensation funds before taking possession; breach of Article 40(3)(b)(i)

  • Forth Properties Limited v Attorney General & 2 Others
    [2021] eKLR

    Cited by the Petitioner in support of compensation claim

  • Rosemary Ihururu Munene v Ihururu Dairy Cooperatives Limited
    (2014) eKLR

    Costs at the discretion of the Court

  • Cecilia Karuru Ngayo v Barclays Bank of Kenya Limited
    (2016) eKLR

    Costs at the discretion of the Court

  • Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others

    Costs follow the event but subject to judicial discretion and public interest

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, No. 19 of 2011; Articles 23(1), 40(3) and 47(1) 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, "Geyser International Assets Limited v National Land Commission", Case Analysis (2023). Constitutional Petition 24 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17813/eng@2023-05-10

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