Nightshade Properties Limited v National Land Commission & 4 others (Environment & Land Case 33 of 2019) [2024] KEELC 7343 (KLR)
The bottom line
#A Kenyan court refused to value compulsorily acquired land itself, ruling that only the National Land Commission can assess compensation through its statutory inquiry process.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court can determine the value of the land and assess compensation where the NLC has failed to convene a Section 112 Land Act inquiry as directed by the Court of Appeal
- 2.Whether the application amounts to a valid execution of the mandamus order
- 3.Whether the court has jurisdiction to assess quantum of compensation in a compulsory acquisition matter in lieu of the NLC
- 4.Whether the applicant's non-disclosure of material facts disentitles it to the orders sought
Key legal issues
#Whether the court may assess compensation itself where the NLC fails to act
No; the court cannot sidestep the NLC and statutory mechanisms under Section 112 of the Land Act to assess compensation itself
The mandamus order only compels the NLC to perform its statutory inquiry. The court held that substituting itself would require it to perform the NLC's statutory tasks (gazetting inquiries, receiving claims, summoning witnesses), which the law assigns exclusively to the constitutional commission. Section 133C(6) further requires compulsory acquisition matters to go first to the Tribunal. The applicant also cited no law authorising court assessment.
Whether the application constitutes execution of the mandamus order
No; the application is neither execution of this court's orders nor those of the appellate court
The Court of Appeal confirmed the mandamus and held it complete in itself and capable of execution against the NLC. The present application does not seek to execute that order but to bypass the NLC entirely and have the court assess quantum, which is contrary to what the appellate court envisaged.
Non-disclosure of material facts by the applicant
The applicant failed to disclose the NLC's Section 112 inquiry and overlapping compensation claims, which independently justified dismissal
The NLC's replying affidavit in the withdrawn contempt application revealed that an inquiry was convened at Mokowe, overlapping claims by ~100 members of Kililana Farmers Organization were received, and 52 of 58 parcels already compensated in 2015 lay within the claimed land. The applicant knew these facts yet did not disclose them, breaching the duty of full and frank disclosure in ex parte applications.
Legal principles established
#- Matters relating to compulsory acquisition of land must, in the first instance, be referred to the Tribunal, not the ELC (Section 133C(6) of the Land Act)
- The court cannot substitute itself for the NLC in conducting Section 112 inquiries to assess compensation
- An ex parte applicant owes a duty of full and frank disclosure of material facts, failing which the application may be dismissed
Court orders
#- 1.The application dated 7/3/2024 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 112 and 128 of the Land Act; Sections 1A and 1B of the Civil Procedure Act
Relief refused
#Prayer that the court determine the value of the land in lieu of the NLC as directed by the Court of Appeal
The statutory machinery under Section 112 is reserved to the NLC and the court cannot usurp it; the application is also not a proper execution of the mandamus order, and the applicant failed to make full and frank disclosure of material facts
Costs
Application dismissed with costs (against the applicant / in favour of the respondents)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the upshot I find that the application dated 7/3/2024 is not only unmerited but is also an abuse of the court process and it is hereby dismissed with costs.
Much as the 1st respondent's recalcitrance demands action, no craft will justify the court's possible circumvention of the constitution and statute to usurp the mandate of the NLC in order to garb itself with jurisdiction as a first instant forum for assessment of quantum in a compulsory acquisition matter.
Despite the provisions of Sections 127, 128 and 148 (5), a matter relating to compulsory acquisition of land or creation of wayleaves, easements and public right of way shall, in the first instance, be referred to the Tribunal.
It is axiomatic that in ex-parte proceedings there should be full and frank disclosure to the court of facts known to the applicant, and that failure to make such disclosure may result in the discharge of any order made upon the ex-parte application, even though the facts were such that, with full disclosure, an order would have been justified.
Issues in the judgment
#The judgment states the Court of Appeal added an order that the 2nd respondent compensate within one year 'from the date of the judgment which was 7/7/24' yet elsewhere the appellate judgment date is given as 7/7/2023
The replying affidavit of the NLC Chairman is described as filed on 29/10/2021 but sworn on 28/10/2024, an apparent date inconsistency
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nightshade Properties Limited v National Land Commission & 4 others (Environment & Land Case 33 of 2019) [2024] KEELC 7343 (KLR)", Case Analysis (2024). Malindi ELC Petition No 20 of 2015 (application dated 7/3/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7343/eng@2024-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.