REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO 33 OF 2019

IN THE MATTER OF: THE CONTRAVENTION OF FUNDAMENTAL RIGHTS

AND FREEDOMS AS ENSHRINEDUNDER ARTICLES 1, 10, 19, 21, 22, 23, 24,

40, 47, 94, 95, 114, 124, AND 125 OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF: THE FAIR ADMINISTRATIVE ACTIONS ACT, NO. 3 OF 2012

AND

IN THE MATTER OF: PARLIAMENTARY POWERS AND PRIVILEDGES ACT NO. 29 OF 2017

AND

IN THE MATTER OF: THE LAPSSET CORRIDOR DEVELOPMENT AUTHORITY ORDER 2013

AND

IN THE MATTER OF:  THE NATIONAL LAND COMMISSION

AND

IN THE MATTER OF: SECTION 107 – 120 OF LAND ACT 2012

AND

IN THE MATTER OF: SECTION 12, 13, 14 & 15 OF THE KENYA PORTS AUTHORITY ACT

AND

IN THE MATTER OF: ENFORCEMENT AND INTERPRETATION OF THE CONSTITUTION.

BETWEEN

NIGHTSHADE PROPERTIES LTD...............................................................PETITIONER

VERSUS

1.  THE NATIONAL LAND COMMISSION                                                                          

2.  LAPSET CORRIDOR DEVELOPMENT AUTHORITY                                                

3.  THE HONOURABLE ATTORNEY GENERAL                                                              

4.  KENYA PORTS AUTHORITY..............................................................RESPONDENTS

JUDGMENT

Background

1. By their Petition dated 30^th November 2019 as lodged herein on 2^nd December 2019, Nightshade Properties Ltd (the Petitioner) prays for the following orders: -

a) An order of certiorari to remove and bring to this Honourable Court and quash the 1^st Respondent’s decision to compulsorily acquire the property of the Petitioner being LR No. 28108 contained in Gazette Notice No. 1518 of 16^th February 2018;

b) An order of mandamus directing the 1^st Respondent to convene a meeting under the provisions of Section 112 of the Land Act to determine the just compensation due to the Petitioner if the intention to acquire the Petitioner’s property is upheld by the Court;

c) A declaration do issue that the actions and decisions of the 2^nd and 5^th Respondents in respect of the Petitioner’s property being LR No. 28101 and their unilateral decision to move into the Petitioner’s property is null, void and unconstitutional for lack of due process as mandated by the Constitution of Kenya;

d) A declaration do issue declaring the provisions of Section 13(1) (b), 2(a), (3) and (4) of the Kenya Ports Authority Act Cap 391 is contrary to the provisions of Article 1, 2, 10, 40 and 47 of the Constitution and therefore unconstitutional;

e) An order of injunction do issue restraining the 1^st, 2^nd and 5^th Respondents whether jointly or severally, by themselves, their servants, agents, contractors or howsoever from entering upon or remaining on LR No. 2801 Mokowe Lamu or in any way interfering with the peaceful quiet possession and enjoyment of the property by the Petitioner;

f)  A declaration do issue declaring the provisions of Section 120 of the Land Act is contrary to the provisions of Article 1, 2, 10, 40 and 47 of the Constitution and therefor unconstitutional;

g) A declaration do issue that this matter is concerning the Petitioner’s proprietary rights and therefore is not a public interest litigation; and

h) An order do issue for costs of the Petition.

2. These prayers are premised on the Petitioner’s contention that it is the registered proprietor of the said LR No. 28101 situated in Mokowe, Lamu containing by measurement 100Ha.  The Petitioner avers that on 7^th December 2011, the National Land Commission (the 1^st Respondent) did purport through the Registrar of Titles Mombasa to cancel the Petitioner’s title to the said property vide Gazette Notice No. 15445. The Petitioner thereafter moved this Court and a decree was issued on 12^th May 2017 quashing the Gazette Notice.

3. The Petitioner further avers that while the said proceedings were pending in Court, the Lapsset Corridor Development Authority (the 2^nd Respondent) and the Kenya Ports Authority (the 5^th Respondent) moved into the suit premises and commenced some operations thereon on the purport that the same had been reserved for its use.  Despite a subsequent finding by the 1^st Respondent that the properties had not been set aside for the use of either the 2^nd or 5^th Respondents, the said Respondents continue to occupy the Petitioner’s property in complete disregard to the Petitioner’s proprietary rights as protected by the Constitution.

4. The Petitioner further avers that in furtherance of the actions of the 2^nd and 5^th Respondents, the 1^st Respondent did on 16^th February 2018 belatedly issue Gazette Notice No. 1518 expressing its intention to acquire the Petitioner’s land for and on behalf of the 2^nd Respondent.  Despite the notice however, no subsequent notification has been made under the provisions of the Land Act to hear the Petitioner or set out the process of determining compensation for the intended acquisition.

5. The Petitioner asserts that the actions of the 1^st, 2^nd and 5^th Respondents have no basis in law, do not follow any due process and are in sheer disregard of Article 40 of the Constitution.  It is further their case that the provisions of Section 120 of the Land Act in so far as they mandate the 1^st Respondent or any other government agency to take possession of property intended to be acquired before compensation is contrary to the express provisions of the Constitution that requires that there be adequate and proper compensation.

6. The 1^st Respondent Commission neither entered appearance nor filed a response to the Petition.

7. On its part, the LAPPSET Corridor Development Authority (the 2^nd Respondent) has by a Replying Affidavit sworn on its behalf by its Legal Officer Hezekiel Kibicho and filed herein on 5^th February 2020 by the Honourable the Attorney General (the 3^rd Respondent) refuted the averments made by the Petitioner herein.

8. The 2^nd Respondent avers that its principle mandate is to plan, coordinate, sequence and provide effective leadership on behalf of the National Government in the implementation of the LAPSSET Corridor Programme components while working with implementing Ministries and agencies. In this respect, the ongoing project under the LAPPSET Project is the construction of the first three Lamu Port berths which is a function under the National Government under the Fourth Schedule of the Constitution.

9.  The 2^nd Respondent avers that prior to the initiation of the project, a thorough feasibility study was conducted to establish the viability of the project, the impact and identification of the location conducive for perching of the project. After the study was completed and the necessary land for use for the project was identified, the Ministry of Lands was required to reserve an initial 28,139 Ha of land for purposes of the Lamu Port and its ancillary activities.

10.  The 2^nd Respondent further avers that all persons whose parcels of land were falling within the land earmarked for the project were identified and compensated.  The 2^nd Respondent is however unaware of any acquisition of the suit property as it did not feature in discussions for compensation and has no records concerning any compulsory acquisition thereof.

11.  The National Assembly (the 4^th Respondent) is similarly opposed to the Petition.  In their Grounds of Opposition dated 13^th December 2019 and filed herein on 3^rd February 2020, the 4^th Respondents states: -

1.  That matters of compulsory acquisition of land are sanctioned by the law and the enactment of a law to regulate the same cannot deprive the Petitioner of the right to property provided under Article 40 or any other Article of the Constitution and as such, the Petitioner’s allegations that they have been deprived of their property by the enactment of the law has no basis in law.

2.  That the Petitioner acknowledges in its Petition that the actions in particular of 1^st, 2^nd and 5^th Respondents relate to the process of compulsory acquisition of LR No. 28101.  Therefore, the Petitioner should not be allowed to baptize an ordinary compulsory acquisition dispute into a Constitutional question.

3.  That the Petitioner makes general allegations without offering any particulars, explanations or supporting facts on how the impugned sections contravene the Constitution.  Accordingly, the Petition does not meet the threshold enunciated in the case of Ananta Karimi Njeru –vs- Republic (1979) eKLR.

4.  That the Petitioner has not sufficiently proved that the 4^th Respondent has failed in its mandate under Article 68 and 95 of the Constitution on enacting legislation that is in line with the Constitution.

5.  That further, Parliament took very seriously its Constitutional duty to legislate on the State’s powers of deprivation or expropriation as evidenced by Section 107 to 133 of the Land Act, 2012.

6.  That Article 40(3) of the Constitution of Kenya 2010 as reads together with Sections 117 (1) and 120 (2) of the Land Act, 2012 allows the Government to have immediate possession of the land for public purpose pending finalization of the quantum of award payable together with charged interest.

7.  That the contents of Section 120(2) of the Land Act, 2012 which allows the Government to have immediate possession of the land for public purposes pending finalization of the quantum of award payable together with charged interest principle was affirmed by the Court in the case of African Gas Oil Company Ltd –vs- Attorney General & 3 Others (2016) eKLR where the Court held that:     “26. First, it is correct that section 120(2) of the Land Act empowers the 3^rd Respondent, in cases where there is an urgent necessity for the acquisition of land, and it would be contrary to the public interest for the acquisition to be delayed by following the normal procedures of compulsory acquisition under the Land Act to take possession of land upon the expiration of fifteen days from the date of publication of the notice of intention to acquire.”

8.  That the case of Isaiah Otiato & 6 Others –vs- County Government of Vihiga (2018) eKLR the Court also approved the said section and held that “The process is completed by the possession of the land in question being taken by the National Land Commission once payment is made even though the possession may actually be taken before all the procedures are followed through and no compensation has been made. The property is then deemed to have vested in the National or County Government as the case may be with both the proprietor and the land registrar being duly notified.”

9.  That the circumstances upon which the National Land Commission may acquire land without prior compensation is a policy decision solely within the mandate of the executive and enacted by Parliament and this Honourable Court has no expertise to make policy decisions which are solely within the realm of the other arms of Government.

10. That Section 120(2) of the Land Act however also allows possession to be taken in cases of urgency if acquisition by following normal procedure would lead to a delayed acquisition. If land is so acquired, the just compensation is to be paid promptly in full to persons whose interests in land have been determined. Section 120(2) of the Land Act does not take away the right to compensation. Therefore, it does not take away the right to compensation. Therefore, it does not deprive the Petitioner of his property as alleged.

11. That Section 120 (2) of the Land Act has also expressly provided for circumstances upon which the National Land Commission may acquire land without compensation.

12.  That manifestly, Section 120(2) of the Land Act does not purport to take ownership of property under compulsory acquisition but only allows for possession of such property until adequate compensation is made to the owners of the property.

13. That Section 161 of the Land Act, 2012 as read with Section 7 of the Sixth Schedule to the Constitution make saving provisions for the impugned Sections of the Kenya Ports Authority Act.  Section 161 of the Land Act provides that “All other laws relating to land shall be contrived with alterations, adaptations, qualifications and exemptions necessary to give effect to this Act.”  In any case, clearing of statute books is an ongoing process which cannot happen overnight.

14. That further, the mere fact that the provisions were enacted pre-date the Constitution of Kenya 2010 is not a valid reason to declare the impugned provisions unconstitutional.

15. That Article 119 (1) of the Constitution provides that any person has a right to Petition Parliament to consider any matter within its authority, including enacting, amending or repealing any legislation.  Accordingly, the Petitioner ought to have approached Parliament before filing the present Petition against the 4^th Respondent.

16.  That Section 13(3) of the Kenya Ports Authority Act mandates the Authority to pay compensation to any person whose land has been acquired. This is in line with the Constitutional requirement under Article 40 (3) of the Constitution and Section 120 of the Land Act, 2012.

17. That under the Constitution, the right to property cited by the Petitioner is not absolute and is subject to reasonable restrictions.

18.  That the Petitioner has not made out a case of unconstitutionality of Sections 120 of the Land Act as well as Section 13 and 14 of the Kenya Ports Authority Act, Cap 291 Laws of Kenya.  Accordingly, the Petitioner does not deserve any of the orders sought.

19. That for the foregoing reasons, the Petition herein lacks merit, it is frivolous, generally argumentative and an outright abuse of the Court process and merely intended to stifle the 4^th Respondent’s mandate to legislate.

20. That in the circumstances of this case and in the interest of justice, fairness and proportionality to be met, the petition herein should be dismissed with costs to the 4^th Respondent.

12.   The Kenya Ports Authority (the 5^th Respondent) is similarly opposed to the Petition. In a Replying Affidavit sworn on its behalf by its head of Contracts and Conveyancing Michael O. Sangoro and filed herein on 16^th December 2019, the 5^th Respondent avers that the Petitioner has not adduced any or any sufficient evidence to entitle it to the prayers sought.

13.  The 5^th Respondent asserts that the subject matter of this Petition is the on-going development and construction of the Lamu-Port-South Sudan- Ethipia-Transport (LAPSSET) Corridor Project.  One of the constituent infrastructure projects within the (LAPPSET) Corridor Program is the Lamu Port project at Manda Bay situated within the County of Lamu.  The Project commenced with dredging operations in October 2016 with a tentative completion date of 14^th January 2020.

14.  The 5^th Respondent therefore avers that the orders sought by the Petitioner are extremely drastic in nature as they seek to undo the enormous project that is nearly complete and whose disruption would occasion irreparable loss and damage to the public.  The 5^th Respondent asserts that the LAPSSET Corridor is defined under Section 2 of the LAPSSET Corridor Development Authority Order, 2013 to include all those pieces of land covered by the LAPSSET highways, pipelines and railway lines connecting Kenya, South Sudan, Ethiopia and Lamu Port.  The area of land represented as LR No. 28101 falls within the corridor.

15.  The 5^th Respondent avers that prior to the controversy surrounding the ownership of the suit property, the consultant responsible for the construction of the First Three Berths at the Port identified portions of Lamu at Mokowe area in the County of Lamu for the acquisition by the National Land Commission. In the premises the Consultant commissioned a survey to establish the ownership and acreage of each land owner within the area earmarked for acquisition for the Lamu Port Project.

16.  The 5^th Respondent further avers that in a Survey Report of September 2014, the Ministry of Lands and Physical Planning published a list of owners affected by the LAPSSET Lamu Port Project but the name of the Petitioner was not in the List.  The National Land Commission then embarked on a verification exercise to establish the bonafide land owners in order to facilitate the process of compulsory acquisition and compensation of the Project Affected Persons. The Commission then published a list of the affected persons in the Daily Nation Newspaper of 10^th December 2014 and again, the Petitioner’s name was not in the list.

17.   The 5^th Respondent avers that following the completion of the verification exercise, the Ministry of Transport and Infrastructure Development directed the 5^th Respondent to release a sum of Kshs 1,319,586,674.55 to the National Land Commission for purposes of compensating the affected persons. In the premises the 5^th Respondent finalized its role by releasing the sums to the 1^st Respondent as directed by the Ministry of Transport and Infrastructure Development.

18.  Having compensated the claims, the 5^th Respondent states that it proceeded to take possession of the respective parcels of land and commenced construction works at the Lamu Port Project in October 2016.

19.  The 5^th Respondent asserts that the suit property happened to be one of those acquired by the 1^st Respondent for the Project and that accordingly the 5^th Respondent now has its presence thereon as the key implementing agency charged with the mandate of constructing and developing the Project. As at the time the 1^st Respondent undertook compulsory acquisition of the land however, the Petitioner did not have a title in its name over the said property and hence could not be factored in the compensation.

20.  The 5^th Respondent avers that from the Petitioner’s own Supporting Affidavit, its title had been cancelled in the year 2011 and it was not until the Judgment delivered on 12^th May 2017 that the title was restored.  By then and as at the time of filing the Petition, the process of compulsory acquisition had already been finalized and all affected persons compensated.

21.  The 5^th Respondent avers that it was not until 20^th December 2018 that the Petitioner demanded compensation for the alleged compulsory acquisition of the suit property. It is the 5^th Defendants case that those demands for compensation remain misplaced as it is only the 1^st Respondent Commission that is tasked with the mandate of acquiring property for public use through compulsory acquisition.

22.  The 5^th Respondent further avers that by a letter dated 28^th June 2017, the 1^st Respondent had informed them that there was an apparent dispute on the ownership of the suit property with directions that it be gazetted for acquisition.  Subsequently by Gazette Notice No. 1518 of 16^th February 2018, the 1^st Respondent signaled its intention to acquire the property from the Petitioner by way of compulsory acquisition.

23.  The 5^th Respondent thus denies the Petitioner’s contention that it is desirous of depriving the Petitioner of its property without compensation. The 5^th Respondent however asserts that the balance of convenience tilts in favour of the construction and development of the LAPPSET Port Project which is already under way. The contract for the construction of the Project has strict timeliness and it is in the public interest that the construction of the Project proceeds unhindered to a void wastage of resources.

Analysis and Determination

24.  By directions given by the consent of the parties, it was agreed that the Petition be disposed off by way of Affidavit evidence as well as written submissions. I have carefully perused and considered the pleadings herein and the rival submissions and authorities placed before me by the Learned Advocates for the parties.

25.   The crux of the matter before me is the contention by the Petitioner that it is the proprietor of the suit property which it says was compulsorily acquired by the Respondents without compensation. It was not in contention that the suit property- a parcel of land measuring 100.0 Ha situated at Mokowe in Lamu County is registered in the name of the Petitioner, a limited liability company going by the name Nightshade Properties Ltd.

26.  Apparently within the same locality in which the suit property is situated, the Government of the Republic of Kenya has embarked on the development and construction of what is known as the Lamu Port-South Sudan-Ethiopia-Transport (LAPSSET) Corridor Project.  One of the constituent infrastructure projections within the LAPSSET Corridor happens to be the construction of the Lamu Port Project at Manda Bay in Lamu.

27.  It was again not in contention that in order to facilitate the LAPSSET Corridor Project, a number of properties falling within the corridor were identified and compulsorily acquired by the National Land Commission (the 1^st Respondent) in a process that appears to have taken off around the year 2013 when the LAPSSET Corridor Development Authority (the 2^nd Respondent) was created terminating in the year 2016 when the affected persons were compensated.

28.  In October 2016, the Kenya Ports Authority (5^th Respondent) the State agency charged with the implementation of the Lamu Port Project within the LAPSSET Program began the construction works of the First Three Berths at the Port.  While the 5^th Respondent has in the process taken over the suit property and is already proceeding with constructions thereon, the Petitioner contends that its parcel of land has neither been compulsorily acquired nor has it received compensation therefor.

29.  The Petitioner contends that by their conduct as depicted above, the 2^nd, 3^rd and 5^th Respondents herein have unlawfully deprived the Petitioner of its land contrary to the Constitution of Kenya 2010 and the Land Act.  It is the Petitioner’s case that the Constitution and the Land Act envisaged a situation where every person whose land has been compulsorily acquired should be compensated and protected from wanton and unnecessary deprivation of their private property.

30.  In view of the contention that the Constitution and the Land Act were not followed, the Petitioner asserts that the 5^th Respondent resorted to the provisions of Sections 13 and 14 of its Constitutive Kenya Ports Authority Act to acquire the land compulsorily. It is further the Petitioner’s case that those provisions have not been aligned with and are in contravention of the Constitution of Kenya 2010.  In that respect, the Petitioner accuses the National Assembly (the 4^th Respondent) of failing in its constitutional duty and responsibility to repeal and or align the said provisions with the Constitution and other relevant legislation.

31.  As it turned out, the 1^st Respondent neither entered appearance nor filed any response to the Petition.  Established pursuant to Article 67 of the Constitution, the 1^st Respondent was enjoined in these proceedings as the primary agency charged with the responsibility to acquire and manage land for and on behalf of both the national and Country Governments.

32.  It is the Petitioner’s position that the 1^st Respondent has not followed the process of compulsory acquisition as envisaged in the Constitution of Kenya 2010 and the Land Act 2012.  While the Commission had published its intention to acquire the suit property compulsorily from the Petitioner in the Kenya Gazette Notice No. 1518 of 16^th February 2018, it had not moved the process forward in accordance with the provisions of the Land Act. For that reason, the Petitioner craves an order of mandamus directing the 1^st Respondent to convene a meeting under the provisions of Section 112 of the Land Act to determine the just compensation due to the Petitioner.

33. In the absence of the 1^st Respondent Commission, the other two Government agencies involved in the implementation of the LAPSSET corridor Project –the 2^nd and 5^th Respondents herein were more than happy to deflect blame to the Commission. While acknowledging that all the land that had been earmarked for use of the LAPSSET Project was for the construction of the berths and ancillary project components such as roads, railway lines and administrative blocks and terminals, the 2^nd Respondent avers that the Petitioner has failed to demonstrate its role in the acquisition of the suit property herein since the statutory mandated of compulsory acquisition does not fall within its mandate.

34. It was interesting to note that while the 2^nd Respondent as the authority mandated to plan, coordinate, sequence and provide effective leadership in the implementation of the LAPSSET Corridor Program denies knowledge of the acquisition of the suit property for use in the Project, the 5^th Respondent as the implementing agency readily admits being in occupation of the suit property.

35.  At paragraphs 25, 26 and 28 of its Replying Affidavit, the 5^th Respondent boldly states as follows: -

25. That in response to the contents of Paragraphs 7, 8 and 9 of the Supporting Affidavit of the Applicant, I have been advised by the Advocate on record for the Kenya Ports Authority which advise I verily believe to be true, that the mandate of acquisition of the suit property through compulsory acquisition rests with the National Land Commission.  Consequently, the Applicant ought to have directed any demands for compensation or redress to the National Land Commission, not the Kenya Ports Authority.

26. That bearing the foregoing in mind, at paragraph 11 of its Supporting Affidavit, the Applicant states that there was no notice to acquire the suit property for the Kenya Ports Authority and that the Kenya Ports Authority has not shown interest towards such acquisition. The foregoing contentions by the Applicant flow from clear misconceptions. The suit property was acquired by the National Land Commission for the LASPSET Program Lamu Port Component under the oversight of the LAPSSET Corridor Development Authority.  The Kenya Ports Authority remains in possession of the Lamu Port discharging its mandate of constructing and developing the LAPSSET Lamu Port Project as the State agency implementing the Lamu Port Component of the LAPSSET Program.

28. That in response to the contents of Paragraphs 14 and 15 of the Supporting Affidavit of the Applicant, I reiterate that the suit property was acquired by the National Land Commission for purposes of implementing the LAPSSET Lamu Port Component of the Project, and that the Kenya Ports Authority has presence on the suit property as the key implementing agency charged with the mandate of constructing and developing the LAPSSET Lamu Port Project.”

36.   Arising from the foregoing, the 2^nd and 5^th Respondents are indeed conceding that they have taken possession of and indeed are in occupation of the Petitioners parcel of land.  As regards the due compensation therefor however, they would like the Petitioner to pursue the same from the 1^st Respondent.

37.   In regard to the issue of compulsory acquisition to land, Article 40 (3) of the Constitution provides as follows: -

‘The State shall not deprive a person of property of a description or of any interest in, or right over, property of any description, unless the deprivation: -

a) Results from an acquisition of land or an interest in land, or title to land, in accordance with Chapter five; or;

b) Is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that: -

i.   Requires prompt payment in full of just compensation to the person; and

ii.  Allows any person who has an interest in, or right over, that property a right of access to a Court of law.

38.   Commenting on the elaborate process set out under the law in Patrick Musimba –vs- National Land Commission & 4 Others (2016) eKLR the 5 Judge Bench comprising the Honourable Justice Lenaola( as he then was), Mumbi Ngugi, L. Achode, G.V. Odunga and J. L Onguto observed in extenso as follows: -

“83. The statutory framework for compulsory acquisition is founded under Part VIII of the Land Act, No. 6 of 2012.

84. With a view to ensuring that there was a real, rather than a fanciful or remote connection between the compulsory acquisition and the States development needs, Part III was drafted in detail. History in the practice of compulsory acquisition prompted such detail. Not only was the State to keep its right to compulsorily acquire but the citizen too was to be protected from wanton and unnecessary deprivation of his private property.

85. In summary, the process of compulsory acquisition now runs as follows: -

86. Under Section 107 of the Land Act, the National Land Commission (the 1^st Respondent herein) is ordinarily prompted by the National or County Government through the Cabinet Secretary or County Executive Member respectively.  The land must be acquired for a public purpose or in the public interest as dictated by Article 40(3) of the Constitution. In our view, the threshold must be met; the reason for the acquisition must not be remote or fanciful. The National Land Commission needs to be satisfied in those respects and this it can do by undertaking the necessary diligent inquiries including interviewing the body intending to acquire the property.

87. Under Sections 107 and 110 of the Land Act, the National Land Commission must then publish in the gazette a notice of the intention to acquire the land.  The notice is also to be delivered to the Registrar as well as every person who appears to have an interest in the land.

88.  As part of the National Land Commission due diligence strategy, the National Land Commission must also ensure that the land to be acquired is authenticated by the survey department for the rather obvious reason that the owner be identified. In the course of such inquiries, the National Land Commission is also to inspect the land and do all things as may be necessary to ascertain whether the land is suitable for the intended purpose. See Section 108 of the Land Act.

89. The foregoing process constitutes the preliminary or pre-inquiry stage of the acquisition.

90. The burden at this stage is then cast upon the National Land Commission and as can be apparent from a methodical reading of Sections 107 through 110 of the Land Act, the landowner’s role is limited to that of a distant bystander with substantial interest.

91. Section 112 of the Land Act then involves the landowner directly for puurposes of determining proprietary interest and compensation. The Section has an elaborate procedure with the National Land Commission enjoined to gazette an intended inquiry and the service of the notice of inquiry on every person attached. The inquiry hearing determines the person interested and who are to be compensated. The National Land Commission exercises quasi-judicial powers at this stage.

92. On completion of the inquiry the National Land Commission makes a separate award of compensation for every person determined to be interested in the land and then offers compensation. The compensation may take either of the two forms prescribed.  It could be a monetary award.  It could also be land in lieu of the monetary award, if land of equivalent value, is available.  Once the award is accepted, it must be promptly paid by the National Land Commission. Where it is not accepted then the payment is to be made into special compensation account held by the National Land Commission. See Sections 113-119 of the Land Act.

93. The process is completed by the possession of the land in question being taken by the National Land Commission once payment is made even though the possession may actually be taken before all the procedures are followed through and no compensation has been made. The property is then deemed to have vested in the National or County Government as the case may be with both the proprietor and the Land Registrar being duly notified. See Sections 120-122 of the Land Act.

94. If land is so acquired the just compensation is to be paid promptly in full to persons whose interests in land have been determined. See Section 111 of the Land Act.  This is in line with the Constitutional requirement under Article 40(3) of the Constitution that no person shall be deprived of his property of any description unless the acquisition is for a public purpose and subjected to prompt payment in full of just compensation.”

39.   Clearly, the Respondents herein have not followed the process of the compulsory acquisition in full and to its end as envisaged under the Constitution of Kenya 2010 and the Land Act 2012. Indeed, while they moved into the suit property way back in the year 2016, the formal process of acquiring the same did not start until some two years later in February 2018.

40.   From the material placed before me however, the delay to start the formal process of acquisition of the property was not solely attributable to the Respondents herein.  As conceded by the Petitioner itself, on or about 7^th December 2011, the Registrar of Titles Mombasa had cancelled the Petitioner’s title.  As a result, the Petitioner was compelled to institute Malindi ELC Petition No. 20 of 2015; Nightshade Properties Ltd –vs- The Registrar of Titles Mombasa and the Chief Land Registrar for the purpose of validating its title.

41.  That would mean that by the time 1^st Respondent was supposed to authenticate the title and identify the owner thereof as required under Section 108 of the Land Act, the ownership of the suit property remained in doubt. It was not until the 12^th day of May 2017 when the Petitioner obtained Judgment in its favour and a declaration that the cancellation of its title was unconstitutional.

42.  Some two years before the Judgment, the 1^st Respondent had completed the verification exercise and by a letter dated 15^th January 2015, they had forwarded a list of all the affected persons to the Ministry of Transport, Infrastructure Housing and Urban Development for compensation.  Subsequently and upon direction by the parent Ministry, the 5^th Respondent released a sum of Kshs 1,319,586.674.55 to the 1^st Respondent for compensation to the affected persons.

43.  Upon learning of the Judgment in the said Malindi ELC Petition No. 20 of 2015, the 1^st Respondent by a letter dated 28^th June 2017 informed the 2^nd and 5^th Respondent as well as the concerned Ministries of the validation of the Petitioner’s title and directed that the suit property be gazetted for acquisition. Those directions must have been acted on and hence the Gazette Notice No. 1518 of 16^th February 2018 in which the intention to compulsorily acquire the suit property was published.

44. In my understanding, the fact that compensation had not been paid does not of itself invalidate the process of compulsory acquisition. Given the exigencies of the moment, the Government may actually take possession of property before all the procedures are followed through and where no compensation has been made and I did not therefore find any basis to hold that Section 120 of the Land Act was unconstitutional. (see African Gas Oil Company Ltd –vs- Attorney General and 3 Others (2016) eKLR).

45.  This Court was not in doubt that compulsory acquisition of land including the Petitioner’s land was necessary for the development and construction of the LAPSSET Corridor Project.  I did not think that there was any controversy that the said Project is meant to serve and benefit the public at large.  The acquisition was certainly for a public purpose.  The choice as to whose land was to be acquired was inevitably to be made by the National Government. While the Petitioner had substantial interest in the land, his role as the landowner was at best that of a distant bystander in the process.

46.   That said, the Constitution dictates that where land is so acquired, the just compensation is to be paid promptly in full to those like the Petitioner whose interests in the land have been determined. It is evident that the Respondents herein have been on the Petitioner’s parcel of land since the year 2016.  By June 2017, they were aware that the Petitioner’s right over the suit property had been ascertained. No explanation has been offered by any of the Respondents as to why by 30^th November 2019 when this Petition was filed, the Petitioner remained uncompensated for his property that was compulsorily acquired.

47.   The Petitioner had in addition accused the 5^th Respondent of compulsorily taking over the suitland pursuant to Section 13(1) (b), 2(a), (3) and (4) of the Kenya Ports Authority Act Cap 391 of the Laws of Kenya.  Given the findings hereinabove, I did not find any ground for that contention. As I have found above, this was a process initiated by the national Government with the 5^th Respondent only playing the role of an implementing agency.  Accordingly, I did not think this Court needed to delve into the question of whether those cited provisions of Cap 391 are Constitutional or otherwise.

48.   In the premises, this Petition partially succeeds and I hereby make the following orders: -

a) An order of mandamus is hereby issued directing the 1^st Respondent to convene a meeting under the provisions of Section 112 of the Land Act to determine the just compensation due to the Petitioner within 45 days from the date hereof.

b) In default an order of injunction shall issue upon expiry of the 45 days restraining the 1^st, 2^nd and 5^th Respondents whether jointly or severally, by themselves, their servants, agents, contractors or howsoever from remaining, entering upon or remaining on LR No. 2801 Mokowe Lamu or in any way interfering with the peaceful quiet possession and enjoyment of the property by the Petitioner.

c) The Petitioner shall have the costs of this Petition.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 23RD DAY OF MARCH, 2021.

J.O. OLOLA

JUDGE