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ELCAllowedConstitution Petition dated 27th November, 2023· [2024] KEELC 7286 (KLR)

Dima & another v Kenya Ports Authority & another (Constitutional Petition E014 of 2023) [2024] KEELC 7286 (KLR)

Environment and Land Court
30 October 2024
18,555 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~74 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Petitioners, registered proprietors of Subdivisions 2445 and 2446 Section VI Mainland North in Mombasa, petitioned the Kenya Ports Authority and the National Land Commission over compulsory acquisition of portions of their land for the Mombasa Port Area Road Development Project. KPA entered the land around 2013 and constructed a road, fence and storm water drainage; the NLC gazetted the acquisition in 2014, conducted an inquiry and issued compensation awards on 1st September 2014 totalling Kshs. 103,830,000, which were accepted but never paid. In 2017 the properties were deleted from the project by Gazette Notice without explanation, while the land remained encumbered by the acquisition. KPA later confirmed further utilization of 0.01 and 0.0585 hectares beyond the gazetted portions. The Petitioners sought declarations of violation of Articles 40 and 47, payment of the awards with interest from 2013, valuation and compensation for the excess portions, and costs. KPA denied liability, blaming multi-entity project financing and claiming without prejudice privilege over its correspondence. The court found the Petition met the pleading threshold, the Petitioners' indefeasible titles were proved, and the failure to pay prompt just compensation for over ten years violated Articles 40 and 47. It rejected blame-shifting between state agencies, holding the entity that utilized the land equally liable. All prayers were allowed: judgment for the full award of Kshs. 103,830,000, interest at prevailing bank rates from 2013 until payment, valuation and compensation with interest for the excess portions within 30 days, and costs to the Petitioners.

Key legal issues

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01

Whether the Petition met the constitutional threshold for pleading

Holding

The Petition met the Anarita Karimi Njeru reasonable precision threshold, notwithstanding a contradictory passage stating the opposite.

Reasoning

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.

p. 20
02

Whether the Respondents contravened the Petitioners' rights under Article 40

Holding

Yes. The suit properties were compulsorily acquired and utilized without prompt payment of just compensation, violating Article 40(3).

Reasoning

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.

p. 28
03

Whether the Petitioners' right to fair administrative action under Article 47 was breached

Holding

Yes. The failure to pay compensation promptly for over ten years, and the unexplained deletion of the properties from the acquisition, breached Article 47.

Reasoning

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.

p. 33
04

Entitlement to interest and compensation for excess land utilized

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Judgment entered in favour of the Petitioners as per the Petition dated 27th November, 2023 in its entirety.
  2. 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. 3.Declaration that the Petitioners' rights to fair administrative action under Article 47 of the Constitution have been contravened by the Respondents.
  4. 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. 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. 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. 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. 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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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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.