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ELRCDismissedJudicial Review Notice of Motion dated 23rd April 2013 (JR application)· [2015] KEELRC 355 (KLR)

Nas Auto Spares v Land Acquisition & Compensation Tribunal & 2 others [2015] KEELRC 355 (KLR)

Environment and Land Court
28 October 2015
SKS.M. Kibunja
2,497 words in judgment
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The bottom line

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The court dismissed a company's challenge to a compulsory land acquisition because the process followed the correct law and the company's ownership documents were contradictory.

What this practically means

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Executive summary

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Nas Auto Spares Ltd, the exparte applicant, sought judicial review orders of prohibition, certiorari and mandamus against the Land Acquisition Compensation Tribunal and the Commissioner for Lands, contending that an award of 11th July 2012 for the compulsory acquisition of its parcel Kisumu/Kasule/5522 was made under the Land Acquisition Act (Cap 295) after that Act had been repealed by the Land Act No. 6 of 2012 on 2nd May 2012, and that compensation should instead be payable under the Land Act 2012. The respondents replied that the acquisition for the Nyamasaria Heavy Truck Parking was gazetted in July 2010 and completed under the repealed Act, with awards issued in February 2011, and that the award letter annexed by the applicant concerned a different parcel and a different owner. The National Land Commission, enjoined by order of 29th September 2014, did not participate. Justice S.M. Kibunja found the applicant's documents contradictory: the title deed, copy of register and award referred to three different parcels and owners, and the title deed and register conflicted on the subdivision origin, register opening date and registry map. The court held the acquisition process was commenced and completed under Cap 295 before 2nd May 2012, that the applicant was not the registered proprietor when the process occurred, that no appeal had been lodged before the Tribunal, and that the applicant failed to show any procedural flaw, judicial review being concerned with process rather than merits. The notice of motion was dismissed with costs on 28th October 2015; leave to appeal was granted.

Key legal issues

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01

Whether the compulsory acquisition of Kisumu/Kasule/5522 followed due process and the correct statute

Holding

The acquisition was lawfully commenced and completed under the Land Acquisition Act (Cap 295) before its repeal on 2nd May 2012; the Land Act No. 6 of 2012 did not govern it, and the respondents issued the requisite notices, conducted hearings, valuations and awards.

Reasoning

The gazette notices were issued in July 2010 when Agnes Adhiambo Seda was the registered proprietor; awards dated 15th February 2011 issued before the applicant registered as proprietor on 28th March 2011. The Land Act 2012 commenced on 2nd May 2012, after the process was complete, so the repealed Act governed. The applicant also failed to show denial of an opportunity to be heard or other procedural flaw.

p. 5
02

Whether the judicial review orders of prohibition, certiorari and mandamus should issue

Holding

The orders were refused because the applicant failed to establish any procedural irregularity and its documentary evidence was contradictory and unrelated to the award impugned.

Reasoning

The title deed, copy of register and award annexed referred to three different parcels owned by different persons, and the applicant provided no nexus between its parcel and the award. Further contradictions between the title deed and the copy of the register (subdivision origin, register opening date, registry map) cast doubt on the genuineness of the ownership documents. Judicial review being process-focused, no process failure was shown.

p. 4

Legal principles established

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  • Judicial review is concerned with the decision-making process of public bodies rather than the merits of the decision.
  • An acquisition process commenced and completed under the Land Acquisition Act (Cap 295) before 2nd May 2012 is governed by that Act, not the Land Act No. 6 of 2012 which repealed it.
  • A party cannot complain of an acquisition process completed before it became the registered proprietor of the land.

Court orders

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  1. 1.The Exparte Applicant's notice of motion dated 23rd April 2013 is dismissed with costs

Authorities

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Legislation

  • Land Acquisition Act (Cap 295) (repealed)entire Act; Land Acquisition Compensation Tribunal provisions
  • Land Act No. 6 of 2012Section 161(1)
Jurisdiction invoked
Judicial review jurisdiction of the High Court / Environment and Land Court over decisions of public bodies (Land Acquisition Act (Cap 295) and Land Act No. 6 of 2012 context)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "Nas Auto Spares v Land Acquisition & Compensation Tribunal & 2 others [2015] KEELRC 355 (KLR)", Case Analysis (2015). Judicial Review Notice of Motion dated 23rd April 2013 (JR application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/355/eng@2015-10-28

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