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ELCPartially AllowedNot stated in the judgment text· [2024] KEELC 1355 (KLR)

Export Milling (EPZ) Ltd v H. Young & Co. (EA) Limited & 2 others (Environment & Land Case 85 of 2018) [2024] KEELC 1355 (KLR)

Environment and Land Court of Kenya
26 February 2024
26,977 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~108 min to read original · ~4 min brief

The bottom line

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Kenya's land court ordered KPA to pay over Kshs 740 million for taking land for Kipevu Road without following the compulsory acquisition procedure.

What this practically means

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Executive summary

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The Environment and Land Court at Mombasa (Naikuni J) determined a claim by Export Milling (EPZ) Limited against H. Young & Co. (EA) Limited (contractor), Kenya Ports Authority (KPA) and the Export Processing Zones Authority (EPZA) arising from the construction of the Kipevu Road, Mombasa over Plot MN/VI/4785. The plaintiff, holding a lease from EPZA executed in 2015 and registered on 9th May 2018 after KPA had taken possession, sought injunctions, damages or alternatively Kshs. 537,858,236.46 as assessed by the National Land Commission (NLC). EPZA counter-claimed, alleging the plaintiff's lease was fraudulently and illegally procured while the plot was leased to Olsa (EPZ) Ltd and earmarked for acquisition. The court framed five issues. It held that allegations of fraud must be specifically pleaded and strictly proved, and EPZA failed to prove fraud; the plaintiff's title was bona fide, first in time and indefeasible under Sections 24, 25 and 26 of the Land Registration Act. On the second issue, the court held that deprivation of property is lawful only under Article 40(3) of the Constitution and Sections 107-120 of the Land Act, and found that KPA failed to issue the mandatory preliminary notice under Section 107(5) and took possession without compensation, violating Article 40(3). The court found merit in EPZA's counter-claim, declaring that the contractor (1st Defendant) had no proprietary interest and that its compensation claim was null and void. Both the plaintiff and EPZA were awarded the NLC-assessed sums of Kshs. 537,858,236.46 and Kshs. 202,606,039.55 respectively, with a mandatory injunction compelling KPA to pay the plaintiff within 30 days. The permanent injunction was overtaken by events as the road was complete. Costs of the suit and counter-claim were awarded to the plaintiff and EPZA, payable by the 1st and 2nd Defendants jointly and severally.

Key legal issues

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01

Whether the plaintiff was the bona fide owner of the suit land entitled to the orders sought

Holding

Yes. The 3rd Defendant failed to prove its allegations of fraud and illegality; the plaintiff's lease was bona fide, first in time, and indefeasible under Sections 24, 25 and 26 of the Land Registration Act.

Reasoning

The court held that allegations of fraud must be pleaded and strictly proved on a standard higher than balance of probabilities. The 3rd Defendant's claim that the plot was leased to Olsa (EPZ) Ltd was contradicted by its own witness, who confirmed the Olsa lease had been terminated/surrendered. The letter of offer was accepted on 25th July 2013 within its validity period. Applying Munyu Maina and the first-in-time principle (Wreck Motors, Gitwany Investment), the court found the plaintiff's lease registered on 9th May 2018 was legal and bona fide, vesting indefeasible title.

p. 31
02

Whether the government could lawfully deprive a person of property via a grant of lease to another and the lawful procedure for compulsory acquisition

Holding

No. Deprivation is lawful only through compulsory acquisition in conformity with Article 40(3) of the Constitution and Sections 107 to 120 of the Land Act. The 2nd Defendant did not follow the law: no notice of intention to acquire under Section 107(5) was issued to the plaintiff.

Reasoning

The court traced the constitutional and statutory scheme for compulsory acquisition under Article 40(3) and Part VIII of the Land Act, citing Fort Properties, Patrick Musimba and African Gas and Oil. Section 120(2) permits early possession only in urgent necessity after fifteen days from publication of the notice of intention to acquire. Here, no notice of intention to acquire was ever issued to the plaintiff, who had not seen any such notice. Taking possession without payment of compensation and without notice violated Article 40(3)(a) and (b) of the Constitution.

p. 36
03

Whether the 3rd Defendant's Counter-Claim is sustainable

Holding

Yes. The court found merit in the 3rd Defendant's claim, granting its declarations and the mandatory injunction compelling the 2nd Defendant to pay compensation for the acquisition to the 3rd Defendant as landlord.

Reasoning

The court noted that the 3rd Defendant had joined issues with the plaintiff over the land and the compensation. The plaintiff was held to be the bona fide lessee for the 50-year term, with the 3rd Defendant remaining landlord with a reversionary interest. Consequently the court found merit in the 3rd Defendant's counter-claim and granted the declarations it sought and the mandatory order compelling payment of the landlord's reversionary interest of Kshs. 202,606,039.55.

p. 38
04

Whether damages/compensation should be awarded for the unlawful compulsory acquisition

Holding

Yes. The plaintiff and the 3rd Defendant were awarded the NLC-assessed sums: Kshs. 537,858,236.46 to the plaintiff as tenants' sublease interest and Kshs. 202,606,039.55 to the 3rd Defendant as landlord's reversionary interest, plus a mandatory injunction compelling payment within 30 days.

Reasoning

The court applied Article 23 of the Constitution on remedies and the principle of equivalence from Katra Jama Issa. It found that at the time of gazettement the parties had agreed to have the valuation determined by the National Land Commission, which had constitutional and statutory mandate to assess just compensation for compulsory acquisition. It therefore preferred the NLC valuation over the other commissioned reports (Knight Frank and the Government Valuer) and awarded full, just and adequate compensation based on the NLC assessment to both the plaintiff and the 3rd Defendant.

p. 41

Legal principles established

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  • When a registered proprietor's root of title is under challenge, the proprietor must go beyond the instrument of title and prove the legality of how the title was acquired
  • Fraud must be specifically pleaded and distinctly proved; it is not allowable to leave fraud to be inferred from the facts
  • Under Article 40(3) of the Constitution, the State may not deprive a person of property unless for a public purpose with prompt payment in full of just compensation and a right of access to court
  • The preliminary notice under Section 107(5) of the Land Act is a mandatory requirement in compulsory acquisition and must be served on every person who appears to be interested in the land
  • Possession of land before payment of compensation under Section 120(2) of the Land Act is only permissible where there is urgent necessity and it would be contrary to the public interest to follow normal procedures, and only upon expiry of fifteen days from publication of the notice of intention to acquire
  • Where there are two competing titles, the first in time prevails

Court orders

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  1. 1.A declaration that the 1st Defendant had no proprietary interest in Plot No. MN/VI/4785 when the plaintiff and the 2nd Defendant commenced the process to acquire the same for expansion of Kipevu Road, Mombasa
  2. 2.A declaration that the 1st Defendant's claim for compensation submitted to the 2nd Defendant through the plaintiff's Chief Executive Officer vide a letter dated 13th November, 2015 is null and void ab initio
  3. 3.An award to the plaintiff and the 3rd Defendant of Kshs. 537,858,236.46 (tenants' sublease interest) and Kshs. 202,606,039.55 (Landlord's reversionary interest) respectively
  4. 4.A mandatory order of injunction compelling the 2nd Defendant to pay the sum of money payable as compensation for acquisition of land Plot No. MN/VI/4785 to the plaintiff within 30 days
  5. 5.Costs of the suit against the 1st and 2nd Defendants and the Counter-Claim by the 3rd Defendant awarded to the plaintiff and the 3rd Defendant, to be paid by the 1st and 2nd Defendants jointly and severally

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40 (including 40(1), 40(3)(a) and (b), 40(6))
  • Constitution of Kenya, 2010Article 23
  • Constitution of Kenya, 2010Article 22(1)
  • Constitution of Kenya, 2010Article 67
  • Constitution of Kenya, 2010Article 65
  • Land Act, No. 6 of 2012Sections 107 to 133; Sections 107(5), 108, 110, 111, 111(1D), 112, 113-119, 120(2), 122, 128, 150
  • Land Registration Act, No. 3 of 2012Sections 24, 25, 26, 36(2), 43(2), 101
  • Evidence Act, Cap. 80Section 107
  • Civil Procedure Act, Cap. 21Sections 1A, 3, 3A and 27(1)
  • Civil Procedure Rules, 2010Order 40 Rules 1, 2 and 3
  • Companies Act, Cap. 486Generally (incorporation of the plaintiff)
  • Kenya Ports Authority Act, Cap. 391Establishment of the 2nd Defendant
  • Export Processing Zones Act, Cap. 517Section 3 and general (establishment of the 3rd Defendant)
  • Environmental Management and Co-ordination Act, 1999Section 58
  • Environment and Land Court Act, No. 19 of 2011Sections 3 and 13
  • Land Acquisition Act (now repealed)General procedure for compulsory acquisition

Cases cited (40)

  • Ahmed Mohamed Noor v Abdi Aziz Osman
    [2019] eKLR
  • Communications Commission of Kenya and 5 Others v Royal Media Services and 5 Others
    [2014] eKLR
  • Ravaspaul Kyalo Mutisya v National Land Commission
    [2022] eKLR
  • Victor Mabachi & Another v Nurtun Bates Limited
    [2013] eKLR
  • Sarnager Singh Hayer & another v Kenya Railways Corporation
    [2022] eKLR
  • Mega Garment Limited v Mistry Jadva Parbat & Co. (EPZ) Limited
    [2016] eKLR
  • Attorney General v Zinj Limited
    [2021] KESC 23 (KLR)
  • Transporters (K) Ltd v Charles Mugabo
    [1999] eKLR
  • Mathew Mutua Mutio v Car & General (K) Ltd
    [2000] eKLR
  • David Bagine v Martin Bundi
    [1997] eKLR
  • Stephen Kinini Wang'ondu v The Ark Limited
    [2016] eKLR
  • John C. Omollo v South Nyanza Sugar Co. Ltd
    [2020] eKLR
  • Raphael Wamiti Gachoka v Oakpark Apartments Mombasa Limited
    [2022] eKLR
  • Chon Jeuk Suk Kim & another v E.J. Austin & 2 others
    [2013] eKLR
  • Bachelors Bakery Ltd v Westlands Securities Ltd
    (1982) KLR 366
  • Kenya Anti-Corruption Commission v Online Enterprises Limited & 4 others
    [2019] eKLR
  • Musa Sheikh Aden & another v County Government of Garissa & another
    [2018] eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Republic v District Land Registrar, Mombasa & 5 Others Ex-Parte Super Nove Properties Ltd
    [2016] eKLR
  • Kenya Power & Lighting Co. Ltd v Sherifi Molana Habib
    (2018) eKLR
  • Kenya Breweries Ltd v Okeyo (Okeyo Keyo)
    [2002] 1 EA 109 / (2002) EA Vol 1 at page 111
  • Locabail International Finance Limited v Agroexport and others
    [1986] 1 All ER 901 / (1986) All ER 906
  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR
  • Wreck Motors Enterprises v The Commissioner of Lands and Others
    Civil Appeal No. 71 of 1997
  • Gitwany Investment Ltd v Tajmal Limited & 3 Others
    (2006) eKLR
  • Kagina v Kagina & 2 Others
    (2021) (KECA) 242
  • Vijay Morjaria v Nansingh Madhusingh Darbar & Another
    [2000] eKLR (Civil Appeal No. 106 of 2000)
  • Kinyanjui Kamau v George Kamau Njoroge
    [2015] eKLR
  • Ndolo v Ndolo
    (2008) 1 KLR (G&F) 742
  • Fort Properties Limited v The National Land Commission & Others
    eKLR (2021)
  • Patrick Musimba v National Land Commission & 4 others
    (2016) eKLR
  • African Gas and Oil Company Limited v Attorney General & 3 others
    [2016] eKLR
  • Virendra Ramji Gudka & 3 Others v Attorney General
    (2014) eKLR
  • Katra Jama Issa v Attorney General & 3 others
    [2018] eKLR
  • Bandari Investment & Co. Ltd v Martin Chiponda & 139 Others
    (2022) eKLR
  • Malier Unissa Karim v Edward Oluoch Odumbe
    (2015) eKLR
  • Giella v Cassman Brown
    1973 E.A. Page 358
  • Shepard Homes v Sandham
    (1970) 3 WLR Pg. 356
  • Reids Heweet & Company v Joseph
    AIR 1918 Cal. 717
  • Myres v Defries
    (1880) 5 Ex. D. 180
Jurisdiction invoked
Environment and Land Court Act, No. 19 of 2011 (Sections 3 and 13), and Article 40(3)(b)(ii) of the Constitution (right of access to court for disputes on compulsory acquisition), Section 128 of the Land Act, 2012

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, "Export Milling (EPZ) Ltd v H. Young & Co. (EA) Limited & 2 others (Environment & Land Case 85 of 2018) [2024] KEELC 1355 (KLR)", Case Analysis (2024). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1355/eng@2024-02-26

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