Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedConstitutional Petition 209 of 2015· [2023] KEELC 21591 (KLR)

Geyser International Assets Limited v Attorney General & 3 others

Environment and Land Court of Kenya
6 November 2023
LNL.L. Naikuni
23,309 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

#

Kenya's government must pay landowners full compensation before taking their land, and delays now attract interest and damages.

What this practically means

#

Executive summary

#
The Environment and Land Court at Mombasa (L.L. Naikuni, J) allowed in its entirety a constitutional petition by Geyser International Assets Limited arising from the compulsory acquisition of part of its Miritini industrial property (L.R. MN/VI/3892) for the Standard Gauge Railway. The Petitioner, compensated Kshs. 381,125,071 on 9th November 2017, claimed that the Respondents took possession on 20th October 2015 - demolishing its perimeter wall in breach of conservatory orders - before any award was issued or compensation paid, and sought declarations, interest of Kshs. 101,534,630 and damages. The 1st and 3rd Respondents argued the Petitioner failed to prove formal taking of possession under Section 120 of the Land Act, that payment was delayed by a County Government title complaint and the Petitioner's own non-acceptance of the award, that payment was 'prompt' under the Land Value (Amendment) Act 2019, and that the Land Acquisition Tribunal had exclusive jurisdiction. The Court rejected the jurisdictional objection, holding Section 133C(2) of the Land Act discretionary, the objection belated, and the Tribunal's operational existence unproven. It found the Petition met the Anarita Karimi Njeru precision threshold, and held that actual invasion and construction on 20th October 2015 constituted taking of possession, so payment over two years later breached Articles 40(3) and 47(1). Judgment was entered for the Petitioner in its entirety: declarations of breach, a permanent injunction, Kshs. 101,534,630 as interest at not less than 12%, general and exemplary damages at 5% of the principal, and costs against the 3rd Respondent.

Key legal issues

#
01

Jurisdiction of the ELC vis-à-vis the Land Acquisition Tribunal

Holding

The Court held it has jurisdiction; the referral route to the Tribunal under Section 133C(2) of the Land Act is discretionary ('may'), the objection was raised late as an afterthought, and no evidence of the Tribunal's operational existence was adduced.

Reasoning

The Court noted Section 13(2)(b) of the Environment and Land Court Act confers original jurisdiction over disputes relating to compulsory acquisition. It found Section 133C(2) discretionary, criticised the Respondents for raising the objection only at judgment stage after nine years of litigation, and observed that no empirical evidence of the Tribunal's operations was presented. Sending the matter to the Tribunal at that stage would be an abdication of duty.

p. 27
02

Whether the Further Amended Petition met the constitutional pleading threshold

Holding

The Petition met the Anarita Karimi Njeru threshold of reasonable precision, pleading with particularity the provisions violated and the manner of violation.

Reasoning

Applying Anarita Karimi Njeru as restated in Mumo Matemu, the Court was satisfied that the Petitioner pleaded the constitutional provisions (Articles 10, 40 and 47) with reasonable precision, identified the Respondents' conduct complained of, and articulated the reliefs sought, thereby complying with the threshold for a constitutional petition.

03

Breach of Article 40 - prompt, full and just compensation before taking possession

Holding

The Respondents took possession on 20th October 2015, demolished the boundary wall and constructed the SGR, but paid compensation only on 9th November 2017 - a breach of Article 40(3).

Reasoning

The Court found it undisputed that the 2nd and 4th Respondents invaded the Suit Property on 20th October 2015 and constructed the railway, while payment of Kshs. 381,125,071 was made more than two years later. Section 125 of the Land Act requires payment before taking possession. The prior unlawful conduct was not sanitized by subsequent payment, and the procedural impropriety also breached Article 47(1).

p. 13
04

Entitlement to interest on delayed compensation

Holding

Interest accrues from actual taking of possession (20th October 2015), not from a formal notice under Section 120; the Petitioner was awarded Kshs. 101,534,630 at not less than 12%.

Reasoning

The Court rejected the argument that interest under Sections 117 and 120 of the Land Act accrues only upon formal notice of taking possession, holding that such an interpretation would reward the Commission for its own failure to issue notices while it occupied the land. Section 117(1) prescribes interest at the CBK base lending rate from the time of taking possession until payment; the Court nonetheless awarded a fixed sum at not less than 12%.

p. 38
05

General and exemplary damages for breach of constitutional rights

Holding

General and exemplary damages awarded at 5% of the principal sum, pursuant to Section 13(1) of the Environment and Land Court Act and Article 23(3) of the Constitution.

Reasoning

Relying on Arnacherry Limited v Attorney General, where Kshs. 3 million was awarded for breach of the right to property, and on Section 13(1) of the ELC Act empowering the Court to grant any just relief including damages, the Court held the Petitioner, having proved breach of Article 40, was entitled to general damages, quantified at 5% of the principal compensation sum.

p. 40

Legal principles established

#
  • Compensation for compulsory acquisition must be prompt, in full and paid before possession of the land is taken; taking possession before payment breaches Article 40(3) of the Constitution.
  • Interest on delayed compensation accrues from the date of actual taking of possession, not merely from issuance of a formal statutory notice of taking possession.
  • The Environment and Land Court has original jurisdiction over disputes relating to compulsory acquisition of land notwithstanding the establishment of the Land Acquisition Tribunal.

Court orders

#
  1. 1.Judgment entered in favour of the Petitioner in terms of the Further Amended Petition dated 6th February, 2019 in its entirety with costs.
  2. 2.Declaration that the Petitioner's rights to acquire and own property under Article 40 of the Constitution were breached by the 1st, 2nd, 3rd and 4th Respondents when they entered upon the suit property and constructed the Standard Gauge Railway before prompt payment in full of just compensation.
  3. 3.Declaration that the Petitioner's rights to fair administrative action under Article 47 of the Constitution were breached by the 1st and 3rd Respondents when construction continued before the 3rd Respondent delivered its decision on the compensation claim.
  4. 4.Order of judicial review in the nature of prohibition and/or permanent injunction prohibiting the Government of Kenya, the 2nd and 4th Respondents and their agents from unlawfully entering upon or interfering with the Suit Property L.R No. Mainland North/Section VI/3892 before payment of just compensation in full.
  5. 5.Order that the 3rd Respondent pay the Petitioner Kshs. 101,534,630.00 as interest accrued on the delayed payments after taking possession for a period of three years from 19th October, 2015.
  6. 6.Order that the Petitioner be awarded general and exemplary damages at 5% of the principal sum arising from the delay in payment of the compensation award.
  7. 7.Costs of the suit awarded to the Petitioner to be borne by the 3rd Respondent jointly and severally.

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 2, 10, 19, 20, 22, 23, 25, 27, 40, 47, 64, 67, 68, 70, 159, 162(2)(b), 258, 259
  • Environment and Land Court Act, No. 19 of 2011Section 13
  • Land Act, No. 6 of 2012Sections 2, 107-133 (incl. 111, 112, 113, 114, 115, 117, 120, 121, 123, 125, 126, 133A, 133B, 133C, 133D)
  • Land Value (Amendment) Act, 2019Amendment of Section 2 of the Land Act (definition of 'prompt')
  • National Land Commission Act, 2012Sections 14(4), (5), (6) and (7)
  • Land Registration Act, 2011Not specified
  • Land Acquisition Act (Cap 295) (repealed)Interest provisions
  • Evidence ActSection 60(1)(a)
  • Civil Procedure Act, Cap 21Section 27(1)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 18, 26(1) and (2)
  • Land Regulations, 2017Part V

Cases cited (32)

  • James Shikwati Shikuku v County Government of Kakamega & 3 others; Isaac Shivachi Mutoka & 2 others (Interested Parties)
    eKLR

    Compulsory acquisition requires prompt payment in full of just compensation under Article 40(3).

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

    In compulsory acquisition the government must strictly adhere to constitutional provisions.

  • Arnacherry Limited v Attorney General
    [2014] eKLR

    Interest on delayed compensation and general damages for breach of Article 40.

  • Christabel Akinyo Onyango v Kenya Airports Authority
    (2014) eKLR

    Interest on delayed compensation under repealed acquisition law.

  • Jephtar & Sons Construction & Engineering Works Ltd v The Attorney General
    HCT-00-CV-CS-0699-2006

    Definition of general damages.

  • Depar Limited v County Executive Committee Member for Lands, Physical Planning, Housing and Urbanization & another
    [2021] eKLR

    Costs follow the event.

  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 28

    Costs follow the event.

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

    Process of compulsory acquisition under the Land Act.

  • African Gas and Oil Company Limited v Attorney General & 3 Others
    [2016] eKLR

    Construction works on acquired land amount to taking of possession; awards should await title determination.

  • National Land Commission v Afrison Export Import Limited & 10 others
    [2019] eKLR

    Occupation before notice of taking possession breaches Section 120(1) of the Land Act.

  • Elizabeth Wambui Githinji & 29 Others v Kenya Urban Roads Authority & 4 others
    [2019] eKLR

    Concept of formal taking of possession.

  • Balwant Narayan Bhagde v M. D. Bhagwat & Others
    AIR 1767, 1975 SCR 250

    Possession of vacant land completed by going upon the land.

  • Banda Development Authority, Banda v Moti Lal Agarwal & Others
    (2011) Civil Appeal No. 3604 of 2011

    Going to the spot constitutes taking possession of vacant land.

  • Broadway Enterprises Ltd v Ministry of Land, Housing and Urban Development & 3 others
    [2017] eKLR

    Public notoriety of highway works defeats claim that formal possession not taken.

  • Rose Florence Wanjiru v Standard Chartered Bank Kenya Limited & another
    [2015] eKLR

    Courts take judicial notice of officially gazetted interest rates.

  • Isaac Aluoch Polo Aluochier v National Alliance and 542 others
    [2016] eKLR

    Judicial notice of gazetted rates.

  • Owners of Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd
    [1989] KLR 1

    Jurisdiction is everything; a court downs its tools once it finds no jurisdiction.

  • Samuel Kamau Macharia & anor v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR

    A court's jurisdiction flows from the Constitution or legislation.

  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR

    Where a clear procedure for redress is prescribed, it should be strictly followed.

  • Benard Murage v Fine Serve Africa Limited & 3 others
    [2015] eKLR

    Alternative statutory remedies should be pursued first.

  • Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others
    [2020] eKLR

    Original jurisdiction does not oust jurisdiction of other competent organs; drafting cannot confer jurisdiction.

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

    Standards of proof and precision in constitutional petitions.

  • Anarita Karimi Njeru v Republic
    [1980] KLR 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.

  • Patrick Musimba v National Land Commission & 4 Others
    Petition No. 613 of 2014

    Just compensation is mandatory; expropriation powers must be carefully scrutinized.

  • Nas Auto Spares v Land Acquisition & Compensation Tribunal & 2 Others
    (2015) eKLR

    NLC due diligence in compulsory acquisition.

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

    Statutory framework governing compulsory acquisition.

  • Horn v Sunderland Corporation
    [1941] 2 KB 264

    Compensation must fully make good the seller's loss.

  • Republic v NLC & 2 Others Ex-Parte Samuel M.N. Mweru & 5 Others
    [2018] eKLR

    Obligation to pay compensation rests exclusively on the National Land Commission.

  • Jasbir Singh Rai v Tarlochan Singh
    (2014) eKLR

    Costs follow the event; costs compensate the successful party.

  • Mary Wambui Munene v Ihururu Dairy Cooperative Societies
    (2014) eKLR

    Costs follow the event.

  • Okiya Omtatah Okoiti v The National Assembly & 5 others
    Constitution Petition No. 33 of 2021

    Court declined to decline jurisdiction for lack of demonstrated alternative forum.

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011; Articles 22, 23 and 258 of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (12)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Geyser International Assets Limited v Attorney General & 3 others", Case Analysis (2023). Constitutional Petition 209 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21591/eng@2023-11-06

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