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ELCAllowedJudicial Review Application (Notice of Motion dated 15th December 2023)· [2025] KEELC 4027 (KLR)

Republic v National Land Commission & another; Khodiyar Limited (Exparte) (Environment and Land Judicial Review Case E009 of 2023) [2025] KEELC 4027 (KLR)

Environment and Land Court / High Court of Kenya at Nairobi (Judicial Review Division)
26 May 2025
COChristine Ochieng
3,473 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The High Court ordered the government to pay a landowner over Kshs.79 million in delayed compulsory land compensation plus interest, rejecting excuses about who holds the money.

What this practically means

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Executive summary

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This was a judicial review application by notice of motion seeking orders of mandamus compelling the National Land Commission and the second Respondent (the acquiring authority) to pay compensation of Kshs.39,000,000/=, Kshs.38,500,000/= and Kshs.1,564,000/=, plus interest at prevailing bank rates from 26th January 2018, for portions of LR No.20281 compulsorily acquired for the Mombasa-Nairobi standard gauge railway under various gazette notices. The Applicant, the registered owner, issued award letters dated 26th January 2018 but was never paid despite furnishing bank details. The 1st Respondent contended it had not received the compensation funds from the 2nd Respondent, whereas the 2nd Respondent asserted it had disbursed Kshs.38.85 billion to the 1st Respondent for Project Affected Persons. The court framed one issue: whether the Applicant was entitled to mandamus. Relying on Article 40(3) of the Constitution, Sections 111, 113, 115, 117 and 125 of the Land Act, and the Gathenji and Noorani parameters, the court held that both Respondents admitted the acquisition and non-payment; their dispute as to who should pay was not the Applicant's concern. The seven-year delay amounted to irrationality, unreasonableness and procedural impropriety. The application was allowed, with mandamus issued jointly and severally against both Respondents for the principal amounts and interest, and costs to the Applicant.

Key legal issues

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01

Whether mandamus lies against the Respondents to pay compensation for compulsorily acquired land

Holding

Mandamus issued. Both Respondents did not dispute the acquisition and non-payment; the dispute between them as to who should pay does not defeat the Applicant's right to prompt just compensation.

Reasoning

Article 40(3) of the Constitution requires prompt payment in full of just compensation, and Section 111(1) of the Land Act mandates prompt payment. Relying on the Gathenji and Noorani parameters, the court found a public legal duty, a clear right, prior demand, and no adequate remedy. The Respondents' blame-shifting as to which of them holds the funds cannot defeat the Applicant's entitlement.

p. 7
02

Whether interest on the awards is payable and from what date

Holding

Interest awarded at prevailing bank rates from 26th January 2018 until payment in full, pursuant to Section 117(1) of the Land Act.

Reasoning

Section 117(1) of the Land Act requires the Commission, on or before taking possession, to open a special account into which it shall pay interest on the amount awarded at prevailing bank rates from the time of taking possession until payment. The court held the provision applies interest only to the principal amount awarded at prevailing bank rates until the time of payment.

p. 7

Legal principles established

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  • Where land is compulsorily acquired and awards made, the Commission cannot escape liability by contending that the acquiring authority has not availed the funds; the inter se dispute between the Respondents is not a concern for the person entitled to compensation.
  • Delay of seven years in paying just compensation for compulsorily acquired land constitutes irrationality, unreasonableness and procedural impropriety warranting an order of mandamus.

Court orders

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  1. 1.An order of mandamus issued directing and compelling the 1st and 2nd Respondents jointly and severally to forthwith pay the Ex parte Applicant Kshs.39,000,000/= being the principal amount awarded for acquisition of 0.004 hectares of LR No.20281
  2. 2.An order of mandamus issued directing and compelling the 1st and 2nd Respondents jointly and severally to forthwith pay the Ex parte Applicant Kshs.38,500,000/= being the principal amount awarded for acquisition of 0.027 hectares of LR No.20281
  3. 3.An order of mandamus issued directing and compelling the 1st and 2nd Respondents jointly and severally to forthwith pay the Ex parte Applicant Kshs.1,564,000/= being the principal amount awarded for developments on LR No.20821
  4. 4.An order of mandamus issued directing and compelling the 1st and 2nd Respondents jointly and severally to pay interest on the aforesaid principal amounts at the prevailing bank rate pursuant to Section 117 of the Land Act 2012 as from 26th January 2018 until the time of payment
  5. 5.Costs of the application awarded to the Ex parte Applicant
Jurisdiction invoked
Judicial review under Section 8 of the Fair Administrative Actions Act and Sections 113(1), 115(1) and 117(1) of the Land Act, 2012; Article 40(3) and Article 47 of the Constitution

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, "Republic v National Land Commission & another; Khodiyar Limited (Exparte) (Environment and Land Judicial Review Case E009 of 2023) [2025] KEELC 4027 (KLR)", Case Analysis (2025). Judicial Review Application (Notice of Motion dated 15th December 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4027/eng@2025-05-26

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