Aden & 2 others v Telkom (K) Limited & 3 others
The bottom line
#A Kenyan court ruled Telkom's takeover of private land was unlawful because the government never followed the proper compulsory acquisition and compensation process.
What this practically means
#Executive summary
#Key legal issues
#Whether Plot Isebania Township/37 was unalienated government land available for allocation to the 1st Defendant
The parcels amalgamated into Plot 37 had been legally allotted to the Plaintiffs and were not unalienated government land
The court found it common ground that the parcels were previously allotted to the Plaintiffs, whose plot cards and title deeds were unchallenged and predated the 1st Defendant's Certificate of Lease. DW2 for the 4th Defendant confirmed the prior allocations. The land therefore did not meet the definition of unalienated government land and was not available for fresh allocation without following compulsory acquisition procedure.
Whether the 1st Defendant's Certificate of Lease conferred indefeasible title
No - the 1st Defendant had to prove the legality of the acquisition process, which it failed to do
Relying on Munyu Maina v Hiram Gathiha Maina, the court held that where a registered proprietor's root of title is challenged, it is not enough to dangle the instrument of title. The 1st Defendant produced no minutes of reallocation, no notices of intention to repossess, and no evidence of compensation. The Certificate of Lease could not be validated at the expense of the Plaintiffs' title documents absent compliance with constitutional and statutory acquisition provisions.
Whether the acquisition was lawful and procedural
The process was unprocedural; compulsory acquisition procedure under the Land Act and the 2017 Compensation Rules must be complied with
Although the plot was required for a public purpose (a Post Office), the defendants failed to follow Part VIII of the Land Act (ss 107-133), including certification under s 110(1) and assessment of just compensation under Rule 3 of the Land (Assessment of Just Compensation) Rules, 2017. The Plaintiffs were never compensated. The acquisition therefore did not crystallise and was declared unlawful and unprocedural.
Whether the Plaintiffs are entitled to the reliefs sought
Partly - the Plaintiffs partly proved their case and were granted a declaration plus a compliance order with a default sanction
Having found the acquisition unprocedural, the court entered partial judgment: a declaration of unlawfulness, an order compelling the 1st, 3rd and 4th Defendants to initiate and comply with the compulsory acquisition procedure within 90 days, and default consequences of deemed cancellation of the lease and deemed permanent injunction. Costs were awarded to the Plaintiffs.
Legal principles established
#- A registered proprietor whose root of title is challenged must go beyond the instrument of title to prove the legality of the acquisition
- Allotment of land to a citizen, symbolised by title deeds, invests inviolable and indefeasible rights defeasible only by lawful compulsory acquisition procedure
- Compulsory acquisition procedure under Part VIII of the Land Act must be strictly complied with before acquisition rights crystallise
Court orders
#- 1.A declaration that the acquisition by the 1st Defendant of the Plaintiffs' parcel Nos. Bukira/Buhirimonono/1987, 1988, 446 and 419 was unlawful and unprocedural
- 2.The 1st, 3rd and 4th Defendants, in consultation with relevant government departments, to initiate and strictly comply with the procedure for compulsory acquisition under the Land Act as read with Rule 3 of the Land (Assessment of Just Compensation) Rules, 2017 within 90 days
- 3.In default of the compliance order, the Certificate of Lease issued in favour of the 1st Defendant shall be deemed cancelled and a Permanent Injunction deemed issued against the 1st Defendant
- 4.Costs of the suit to be borne by the Defendants
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) Constitution; ELC Act) - not expressly stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aden & 2 others v Telkom (K) Limited & 3 others", Case Analysis (2023). Environment & Land Case 746 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18360/eng@2023-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.