Alba Petroleum Limited v National Land Commission & 4 others (Constitutional Petition 36 of 2022) [2024] KEELC 1267 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC vis-à-vis the Land Acquisition Tribunal and the exhaustion doctrine
The Court has jurisdiction; the preliminary objection and exhaustion argument were rejected outright.
The Court accepted that Section 133C of the Land Act establishes the Land Acquisition Tribunal with jurisdiction over compulsory acquisition disputes, but held that Section 133C(2) is discretionary ('may') not mandatory. Section 13(2)(b) of the ELC Act confers original jurisdiction over compulsory acquisition disputes. Raising the jurisdictional objection only at submissions stage after two years of litigation, without evidence the Tribunal was operational, made sending the Petitioner to the Tribunal a dereliction of duty and travesty of justice. The objection based on Section 67 of the Kenya Roads Act also failed because the pre-suit correspondence and meetings constituted notice.
Whether the Petition met the constitutional petition threshold (Anarita Karimi Njeru)
The Petitioner pleaded the violations with reasonable precision and met the threshold.
Applying Anarita Karimi Njeru and Mumo Matemu, the Court examined whether the Petition pleaded with reasonable precision the provisions infringed and the manner of infringement. It found the Petition clearly set out the facts (gazette notices, inquiry, failure to make an award, the notice dated 21st October 2022) and the constitutional provisions violated (Articles 40, 60), and held the Petitioner had complied with the threshold.
Whether the Petitioner's rights were violated and compensation is due
The Petitioner's rights under Article 40 were violated; it is entitled to just compensation and all reliefs sought.
The Court found the Petitioner was the bona fide registered owner, its title indefeasible under Sections 24, 25 and 26 of the Land Registration Act. NLC's own survey and due diligence reports confirmed the suit properties were distinct from the Kenya Navy, Mtongwe land. Taking possession under Section 120(2) of the Land Act without an award or compensation, and relying on the Respondents' own delay as 'urgent necessity', violated Articles 40(3) and 60(1)(b) of the Constitution. Just compensation is mandatory and must be prompt and full.
Legal principles established
#- The Environment and Land Court has original jurisdiction over disputes relating to compulsory acquisition of land, notwithstanding the existence of the Land Acquisition Tribunal, where resort to the Tribunal would amount to abdication and travesty of justice after the matter has been fully heard.
- Section 133C(2) of the Land Act, providing that a person dissatisfied with a decision of the Commission 'may' apply to the Tribunal, is discretionary rather than mandatory.
- Just compensation for compulsory acquisition is mandatory; it must be prompt and paid in full.
- A public authority must act within the four corners of the law whenever it takes administrative or executive action.
- A registered owner of land holds indefeasible rights under Sections 24, 25 and 26 of the Land Registration Act, 2012.
Court orders
#- 1.Preliminary Objection dated 28th November, 2022 by the 1st and 2nd Respondents dismissed; the Court holds jurisdiction to hear the Petition
- 2.Judgment entered in favour of the Petitioner in terms of the Petition dated 9th November, 2022 in its entirety
- 3.Declaration that the 1st Respondent's decision to grant the 2nd Respondent access to the suit properties vide the notice dated 21st October 2022 before paying just compensation is illegal, unconstitutional, null and void
- 4.Declaration that the 1st, 2nd and 3rd Respondents breached, violated and/or threatened to breach and violate the Petitioner's constitutional rights
- 5.Order of mandatory injunction and/or mandamus compelling the 1st and 2nd Respondents to pay full, adequate, fair, reasonable and just compensation within thirty (30) days
- 6.Order of permanent injunction restraining the Respondents from accessing, entering onto, developing or interfering with the suit properties before full and just compensation is paid
- 7.Order of permanent injunction restraining the 4th Respondent from registering any restriction, entry or transaction regarding the compulsory acquisition before full and just compensation is paid
- 8.Order that valuation of the suit land be undertaken and the value be paid to the Petitioner by the 1st Respondent within 30 days of the Judgment
- 9.Order awarding the Petitioner general and exemplary damages at 5% of the value of the suit property for delay in payment of the compensation award
- 10.Costs of the suit awarded to the Petitioner, borne by the 1st, 2nd, 3rd, 4th and 5th Respondents jointly and severally
- Jurisdiction invoked
- Articles 22, 23, 40, 60 and 162(2)(b) of the Constitution of Kenya, 2010; Section 13(2)(b) of the Environment and Land Court Act, No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alba Petroleum Limited v National Land Commission & 4 others (Constitutional Petition 36 of 2022) [2024] KEELC 1267 (KLR)", Case Analysis (2024). Constitution Petition dated 9th November, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1267/eng@2024-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.