Dima & another v Kenya Ports Authority & another (Constitutional Petition E014 of 2023) [2024] KEELC 7286 (KLR)
The bottom line
#Kenya Ports Authority must pay two Mombasa landowners over Kshs. 103 million plus interest from 2013 for taking their land without compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition met the constitutional threshold for pleading
The Petition met the Anarita Karimi Njeru reasonable precision threshold, notwithstanding a contradictory passage stating the opposite.
The court applied Article 259 interpretation principles and the Anarita Karimi Njeru standard as restated in Mumo Matemu. It found the violations of Articles 40 and 47 pleaded with reasonable particularity, supported by certificates of title, gazette notices, awards and correspondence. Paradoxically, a later paragraph states the Petitioners 'had not dutifully complied' with the threshold, yet the court allowed all prayers.
Whether the Respondents contravened the Petitioners' rights under Article 40
Yes. The suit properties were compulsorily acquired and utilized without prompt payment of just compensation, violating Article 40(3).
The Petitioners proved ownership by certificates of title, indefeasible under Sections 24, 25 and 26 of the Land Registration Act. The 1st Respondent entered the land in about 2013, built a road and fence, and compensation awards of 1st September 2014 totalling Kshs. 103,830,000 were never paid. The project was financed across multiple entities, but the court rejected the blame-shifting; the entity that utilized the land shares liability.
Whether the Petitioners' right to fair administrative action under Article 47 was breached
Yes. The failure to pay compensation promptly for over ten years, and the unexplained deletion of the properties from the acquisition, breached Article 47.
Article 47 requires administrative action to be expeditious, efficient, lawful, reasonable and procedurally fair. The Respondents never explained the failure to pay despite completed awards, and Gazette Notice 340 of 2017 deleted the properties without explanation while the road and fence stood completed. The court held this conduct constituted a blatant breach of the Petitioners' right to fair administrative action.
Entitlement to interest and compensation for excess land utilized
The Petitioners are entitled to interest on unpaid compensation from 2013 until payment in full under Section 117(1) of the Land Act, and to valuation and compensation for the further utilized portions.
The 1st Respondent took possession in about 2013 and its own letters confirm further utilization of 0.01 and 0.0585 hectares beyond the gazetted portions. Under Section 119 of the Land Act compensation must be paid for excess size disclosed by survey. Interest on unpaid awards runs at prevailing bank rates from the time of taking possession until payment in full.
Legal principles established
#- Compulsory acquisition of land must comply with Article 40(3) of the Constitution and the Land Act, including prompt payment in full of just compensation.
- A certificate of title is prima facie evidence that the named proprietor is the absolute and indefeasible owner of the land.
- Constitutional violations must be pleaded with a reasonable degree of precision (Anarita Karimi Njeru standard).
- Public authorities must act within the law; administrative action must be anchored in law and not taken capriciously or arbitrarily.
Court orders
#- 1.Judgment entered in favour of the Petitioners as per the Petition dated 27th November, 2023 in its entirety.
- 2.Declaration that the Petitioners' rights to acquire and own property under Article 40 of the Constitution and Sections 111(1) and 115(1) of the Land Act, 2012 have been contravened by the Respondents.
- 3.Declaration that the Petitioners' rights to fair administrative action under Article 47 of the Constitution have been contravened by the Respondents.
- 4.Declaration that the 1st Respondent has compulsorily acquired Sub-division Number 2445 and Sub-division Number 2446 Section VI Mainland North unprocedurally and without compensation.
- 5.Order directing the Respondents to forthwith effect payment of compensation of Kshs. 42,780,000.00 and Kshs. 61,050,000.00, totalling Kshs. 103,830,000.00, pursuant to the awards dated 1st September, 2014.
- 6.Declaration that the Petitioners are entitled to interest on the compensation awards at prevailing bank rates from 2013 until payment in full as provided under Section 117(1) of the Land Act.
- 7.Order directing the Respondents to forthwith undertake valuation and pay compensation, with interest, for the further utilization of 0.01 hectares of Sub-division 2445 and 0.0585 hectares of Sub-division 2446 within 30 days or such period as the Court may order.
- 8.Costs and interest of the Petition awarded to the Petitioners and borne by the Respondents.
- Jurisdiction invoked
- Articles 22, 23, 165 and 258 of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act, No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wambui v Kusai & 3 others (Environment and Land Appeal E008 of 2024) [2025] KEELC 8682 (KLR)[2025] KEELC 8682 (KLR)11 Dec 2025
Cite this brief
#Cite this brief
Caselaw, "Dima & another v Kenya Ports Authority & another (Constitutional Petition E014 of 2023) [2024] KEELC 7286 (KLR)", Case Analysis (2024). Constitution Petition dated 27th November, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7286/eng@2024-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.