Omar & another (As Executors of the will of Omar Bin Khamis) v Kenya Airports Authority & another (Environment and Land Petition 7 of 2023) [2024] KEELC 964 (KLR)
The bottom line
#A Kenyan court ordered the government to pay Kshs 84 million for fencing off private land it never legally acquired or compensated.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st respondent's occupation of 1.2 acres beyond the 2 acres compulsorily acquired violated Article 40(3)
Yes - the encroachment without full and just compensation was an unconstitutional violation of the right to property.
The court found from the evidence that the Commissioner of Lands acquired 2 acres in 1978 and paid compensation, but the 1st respondent took possession of an additional 1.288ha as confirmed by the District Surveyor's letter of 29 June 2005 and a 2023 valuation of about 1.2 acres. Deprivation of property is permissible only through lawful compulsory acquisition with prompt, full and just compensation, which never occurred for the excess land.
Entitlement to compensation and remedies
Petitioners entitled to prompt payment in full of just compensation, quantified at Kshs. 84,000,000.00 for the 1.2 acres illegally fenced off.
Relying on Article 40(3) and the Supreme Court's decision in Attorney General v Zinj Limited, the court held that governmental occupation of land in disregard of constitutional acquisition procedures is not a lawful compulsory acquisition but an unlawful deprivation for which just recompense must be awarded. A 17 February 2023 valuation valued the encroached portion, supporting the quantum awarded.
Legal principles established
#- The State may only deprive a person of property through compulsory acquisition carried out in accordance with the Constitution and statute, with prompt payment in full of just compensation; occupation beyond the acquired portion without compensation is an unlawful deprivation under Article 40(3).
- Title to land taken by the State effectively passes only upon payment of compensation for the portion taken.
Court orders
#- 1.A declaration that the unlawful fencing off of 1.2 acres and compulsory acquisition of Land Parcel No. MN/VI/350 without prompt, just and full compensation was a violation of the petitioners' right to property as guaranteed by Article 40(3) of the Constitution
- 2.An order of compensation in favour of the Petitioners against the Respondents for payment of the value of the 1.2 acres of L.R No. MN/VI/350 (350/VI/MN, CR 2434) illegally fenced off, being Kshs. 84,000,000.00
- 3.The Petitioners to have the costs of the petition from the 1st respondent
- Jurisdiction invoked
- Original jurisdiction under the Constitution of Kenya, 2010 (petition alleging violation of Article 40 property rights); Article 40(3) invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omar & another (As Executors of the will of Omar Bin Khamis) v Kenya Airports Authority & another (Environment and Land Petition 7 of 2023) [2024] KEELC 964 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/964/eng@2024-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.