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Mohamedali v Cabinet Secretary,Ministry of Defence & 4 others (Environment and Land Constitutional Petition 10 of 2022) [2023] KEELC 17617 (KLR) (10 May 2023) (Judgment)
Neutral citation:
[2023] KEELC 17617 (KLR)
Republic of Kenya
Environment and Land Constitutional Petition 10 of 2022
LL Naikuni, J
May 10, 2023
Between
Najmudin Noorali Mohamedali
Petitioner
and
The Cabinet Secretary,Ministry of Defence
1st Respondent
The Cabinet Secretary, Mimistry of Land & Physical Planning
2nd Respondent
The National Lands Commission(NLC)
3rd Respondent
The Chief Lands Registrar
4th Respondent
The Attorney General
5th Respondent
Judgment
I. Preliminaries
1.The Judgment of this Honorable Court pertains to the filed Constitution Petition dated 23rd February, 2022 by the Petitioner on 8th March, 2022. The Constitution Petition was brought under the dint of the provisions of Article 1, 2, 3, 10(1) (a), (b), (c) & 2 (a), (b), 19, 20, 21, 22, 23 27, 40 and 60 258 of the Constitution of Kenya, 2010. As a matter of background information, the parties in the case proceeded by both written affidavits and highlighting of the submissions by the Learned Counsels herein.
2.Upon service, the 1st and 2nd Respondents filed their responses accordingly.
II. The Petitioner’s Case
3.The Petition was premised on the testimonial facts, grounds and the averments made out in the 39 Paragraphed Affidavit of Najmudin Noorali Mohamedali who is both the Petitioners in this Petition sworn and dated on 1st March, 2022.
4.The Petitioner averred being the proprietor of titles of land known as Land Referenced Numbers CR 400 Plot NO.77/IV/MS measuring 2.0 acres and CR 2117/Plot NO.81/IV/MS measuring 6.2 acres all totaling 8.2 acres [hereinafter “The Suit Properties”]. To the Petitioner’s surprise, he established sometimes in the year 2018 that the said suit properties had been illegally compulsorily acquired by the Government of Kenya for the purposes of use by the Department of Defence Kenya Navy as Mtongwe Rifle Range and Naval Dockyard Extension, Mombasa. The Petitioner only came to stumble on the suit properties documents that initially were registered in the names of the Petitioner’s late mother one Dayambai Bhaijee who as fate would have it, died on the 03rd January, 1973 as shown in the Certificate of Death dated 26th June, 2014.
5.He petitioned the Khadhi’s Court in Mombasa Succession Cause No. 174 of 2018 where the Court on 16th October, 2020 him being the only survivor to the estate of his mother issued the following orders:-
6.These orders had not been vacated and the Petitioner indeed remained the registered proprietor of the suit parcels by way of transmission. Indeed, the certificate of postal search of 20th November, 2018 and the one dated 11th January 2022, the Petitioner was and/or is still the proprietor of the Plots known as Tittle Numbers 81/IV/MS (6.2 acres) and 77/IV/MS (2.0 acres) respectively but the Kenya Defence Forces occupies that piece of land illegally. The Petitioner by his letter dated 22nd October 2020, from his then advocate on record demanded from the 1st Respondent compensation for compulsory acquisition of the suit parcels.
7.The Petitioner by another letter dated 1st November, 2020 again through his Advocate on record issued a notice to the 5th Respondent of intention to sue the 1st to 3rd Respondent as was and is required under the Government Proceedings Act Chapter 21 of the Laws of Kenya. By his letter dated 30th November, 2021,the Petitioner through his Advocates on record wrote another demand letter to the 1st Respondent claiming for compensation for compulsory acquisition of his land.
8.By his letter dated 10th December 2020 the Petitioner, through his Advocates on record, particularizes to the Attorney General the circumstances leading him to contemplate proceedings against government over the suit parcels. In letter dated 2nd February, 2022, after much push and pull with the Respondents, the 2nd Respondent addressing the Petitioner’s concerns of illegal occupation of his land by the military, writes to the 5th Respondent with a copy to the Petitioner’s Advocates as follows:-
9.The 2nd Respondent’s purported award of 1.460 acres from Plot No.81/IV/MS that purportedly partitioned into Plot No. 228(81/1) and 229(81/2) on 1st June 1960 was irregular since there was no inquiry made and intention to acquire land were issued to warrant the alleged compensation amount that was not made at all. The 2nd Respondent’s purported award of 1.093 acres from Plot No.77/IV/MS that was partitioned into Plot No. 226 (77/1) and Plot No. 227 (77/2) on the 1st June 1960 was irregular since there was no inquiry made and intention to acquire land were issued to warrant the alleged compensation amount that was made at all.
10.That if indeed “the whole process of acquisition was followed” as suggested by the 2nd Respondent in its letter:a.Then why is the property still in the Petitioner’s name?b.To whom were the notices contemplated under Section 6 of the Land Acquisition Act (Repealed) given? The property was. by way of transmission, in the hands of the estate of the Petitioner's late mother.c.No notice was served.d.To whom was compensation granted?e.The estate of the Petitioner's late mother was never compensated.f.The Petitioner holds all the two (2) original Certificates of ownership.
11.The Petitioner contended that payments were made to a deceased person in the year 1979 when she had passed on 3rd January, 1973. He further asserted that the military continues to occupy the entire parcel of land, having unlawfully acquired the same and without any compensation. By most recent valuation, the value of the property was estimated to be a sum of Kenya Shillings Seven Fifty Hundred and Million (Kshs. 750,000,000/-). The Petitioner had a right to be compensated, fully, adequately and promptly for any compulsory acquisition by the Respondents.
12.From the filed Petition, the Petitioner sought for the following orders:-a.A declaration that compulsory acquisition of 8.2 Acres of the Petitioner’s land by the 1st Respondent without adhering to the strict and mandatory provisions of the Land Acquisition (now repealed) violated the Petitioner’s constitutional rights guaranteed under 40 (3) (a) & (b) not to be arbitrarily deprived of his property by the Government.b.A Declaration that the purported gazettement for acquisition via gazette notice numbers 3075 of 28th October 1977 and GN 3209 of 10th October 1978 gazetted as Plot No.227/IV/Mainland North and 229/IV/Mainland North respectively purporting to be Petitioners, did not take place and if at all it did, it was null and void ab initio for want of due process.c.A Declaration that any document of title that may have emerged from the said gazettement for acquisition via gazette notice numbers 3075 of 28th October, 1977 and GN 3209 of 10th October, 1978 gazetted as Plot No. 227/IV/Mainland North and 229/IV/Mainland North respectively are null and void ab initio.d.A declaration that the 3rd Respondents unilateral award of compensation dated 15th May 1979 more than six (6) years after the death of the then registered owner cannot be regarded as compensation contemplated by Article 40(3)(b) of the Constitution and Section 8 of the Land Acquisition Act.e.A Declaration that the Petitioner’s fundamental rights and freedoms as enshrined under Articles 40 (1), 40(2)(a), 40(3)(b)(i), 47(1) and 47(2) of the Constitution of Kenya 2010, have been contravened and infringed upon by the Respondents herein.f.A Declaration that the Petitioner’s proprietary interests over Titles Of Land Reference Numbers Cr 400 Plot No.77/IV/MS (2.0 Acres) & CR 2117/ Plot No. 81/IV/MS (6.2 ACRES), Mtongwe Area, Mombasa County, was compulsorily acquired by the State.g.A Declaration that the Petitioner herein is entitled to prompt, just and adequate compensation in full within the meaning and tenor of Article 40 (3)(b) (i) the sum of Seven Hundred and Fifty Million (Kshs. 750,000,000/=) for the compulsory acquisition of his proprietary interests over Titles Of Land Reference Numbers Cr 400 Plot No.77/IV/MS (2.0 ACRES) & CR 2117/Plot No.81/IV/MS (6.2 Acres), Mtongwe Area, Mombasa County.h.General, exemplary and aggravated damages under Article 23 (3) of the Constitution of Kenya 2010, for the unconstitutional conduct of the 1st, 2nd and 3rd Respondents.i.Any other orders and directions as this Honourable Court may consider appropriate.j.Costs of the Petition.
13.He urged the Honorable Court to be pleased to grant him the Orders prayed for in above owing to the fact that if said violations wnet unaddressed and without remedy, the Respondents would be setting an unconstitutional precedent and be acting without the law and in contravention of the Constitution.
III. The legal foundation of the Petition
14.The Petition is based on the following legal provisions:a.Article 2 of the Constitution is the Supreme Law of the Republic and binds all persons and all state organs at both levels of Government.b.Article 3 of the Constitution provides that every person has an obligation to respect, uphold and defend the Constitution.c.Article 10 of the Constitution makes provision that the national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons. The national values and principles of governance include inter alia patriotism, national unity, sharing and devolution of power, the rule of law. democracy and participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized; good governance, integrity, transparency and accountability; and sustainable development.d.Article 19(1) &(2) asserts that (1) The Bill of Rights is an integral part of Kenya's democratic state and is the framework for social, economic and cultural policies. (2) The purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential all human beings.e.Article 20(1)&(2) states that: (1) The Bill of Rights applies to all law and binds all State organs and all persons. (2) Every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom.f.Article 21(1) provides that it is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.g.Article 22(1) holds that “inter alia” that every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.h.Article 23(1) provides that the High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial. violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. Clause 3 thereto states inter alia that in any proceedings brought under Article 22 a court may grant appropriate relief, including:—(a)a declaration of rights:(b)an injunction;(c)a conservatory order;(d)a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;(e)an order for compensation; and(f)an order of judicial review.
IV. Contravention of the law
15.The Petitioner contended that;a.By occupying the suit parcels arbitrarily, the Kenya Defence Forces violated the provision of Article 40(3) of the Constitution.b.By occupying the suit parcel, seemingly by compulsory acquisition, without compensation, the Respondents violated the Petitioners Rights under Article 40(3) of the Constitution as read together with Section 113 of the Land Act. No.6 of 2012, Laws of Kenya.c.By compulsorily acquiring the suit parcel for military use absent due process. that is to say the requisite notices, inspection and gazettement, the Respondent’s violated the Rights of the Petitioner under Article 40 and 47 of the Constitution of Kenya, 2010.d.The Respondents thus failed to be guided by constitutional values espoused under Article 10 of the Constitution.e.In failing to observe the conditions of for compulsory acquisitions, the 1st and 2nd Respondent’s violated the principles of land use under Article 60 of the Constitution.a.The documents relied on by the Petitioner.a.Copies and original Certificates of Ownerships dated 25th April, 1923 & 20th October, 1923;b.Copies of the Notice of Inquiry and Notice of Intention to Acquire Land;c.A copy of the Certificate of death of the Petitioner’s mother dated 26th June, 2014;d.A Court of Court Order by the Khadhi’s Court in the Succession Cause No. 174 of 2018 issued on 16th October, 2020;e.Copies of the Certificate of Postal searches of 20th November, 2018;f.A Copy of a letter by the Advocate for the Petitioner dated 22nd October, 2020;g.A copy of a notice of intention to sue dated 1st November, 2021 addressed to the 5th Respondent by the Petitioners Advocates.h.A Copy of a demand letter dated 30th November, 2021 to the 1st Respondent though the Petitioner’s Advocate claiming compensation for a sum of Kenya Shillings Seven Hundred and Fifty Million (Kshs. 750, 000, 000.00).i.A Copy of a letter dated 10th December, 2020 by the Petitioner’s Advocate to the Honorable Attorney General.j.A Copy of a letter dated 2nd February, 2022 and the Gazette Notice publishing Plot Nos. 226/IV/MN; 227/VI/MN; 228/IV/MN and 229/IV/MN respectively.k.A Copy of a Land valuation Report and a letter giving the current market value for a sum of Kenya Shillings Seven Hundred and Fifty Million (Kshs. 750, 000, 000.00)
V. The Respondents’ case
The Grounds of Opposition by the 3rd Respondent
16.The 3rd Respondent opposed the Petition dated 23rd February, 2022 through grounds of opposition dated 30th March, 2022 and filed on 12th May, 2022 on the grounds that:a.The Petition did not raise any cause of action against the 3rd Respondent.b.Article 67 of the Constitution of Kenya, 2010 established the National Land Commission but it was not until 2nd May, 2012 that the National Land Commission Act, 2012 commenced operations.c.On 28th October,1977 and 10th October, 1978 when the land was allegedly gazetted for purposes of acquisition, the National Land Commission had not been constituted and the same was conducted by the Ministry of Lands and Physical Planning, the 2nd Respondent herein.d.The 2nd Respondent confirmed to the Petitioner that they indeed conducted the whole process of acquisition and the award was duly paid to the owner. These records for the period in question were housed by the 2nd Respondent who were better placed to respond and produce documents relating to the alleged acquisition.e.The 3rd Respondent’s presence was not necessary for the court to adjudicate on the claims as between the Petitioner and the Respondents.f.The Petition should be dismissed as against the 3rd Respondent.
17.Additionally, the 3rd Respondent also filed a 17 Paragraphed Replying Affidavit, which was in opposition of the Petition. It was sworn by BRian Ikol and dated 6th February 2023 in response to the Petition together with five (5) annextures marked as “NLC – 1 to 5” annexed thereto. He averred that:a.He was the Director Legal Affairs and Dispute Resolution of the 3rd Respondent and hence competent and duly authorized to swear this affidavit on behalf of the 3rd Respondent herein.b.During the construction of Mtongwe Rifle Range and Naval Dockyard Extension Mombasa. the Commissioner of Lands upon request and instructions of the 1st Respondent hereinafter referred to as the “acquiring authority” compulsorily acquired various properties “inter alia” as per the provisions of Part II of the then Land Acquisition Act, Cap 295.c.The suit properties to wit; Land Reference No. No. 227/IV/Mainland South measuring 1.486 Hectares and Land Reference No. 229/IV/Mainland South measuring 0.097 Hectares were identified for compulsory acquisition for purposes of the said project and according to the records, the registered owners of the said properties was Dayambai M. Bhaijee. (Annexed herein and Marked “NLC - 1” was a copy of the list of registered owners of the acquired properties.)d.It was factual and correct that in strict compliance with the said provisions of Part II of the Land Acquisition Act, Cap 295, the Commissioner of Lands published a Notice of intention to acquire the listed properties in the Kenya Gazette Notice No. 3075 of 28th October, 1977. (Annexed herein and Marked “NLC - 2” was a copy of the said legal Notice.)e.Thereafter and in compliance with the provisions of Section 6 of the Land Acquisition Act, Cap 295 (now repealed), a Notice of inquiry was published in Kenya Gazette as Notice No. 3076 of 28th October,1977 notifying all the affected property owners or persons with interest in parcels of land identified in the Notice to attend an inquiry of the Commissioner of Lands and present their written claims of compensation. (Annexed herein and Marked “NLC - 3” was a copy of the said legal notice.)f.In the intervening period, the Commissioner of Lands undertook ground inspections of the suit properties “inter alia” to determine the amount of compensation payable as per its mandate.g.At the Inquiry. the Petitioner was accorded due process by making both oral and written representations before the Commissioner of Lands. Thereafter, upon conclusion of the inquiry, awards were prepared and served on the affected land owners.h.In making the award the Commissioner of Lands took into consideration the submissions of the registered proprietors and more critically, the provisions of Part II and the provisions of the schedule to the Land Acquisition Act. Cap 295.i.Upon conclusion of the inquiry, an award was prepared for Kenya Shillings Fourty One Thousand and Eighty Nine Twenty five cents Kshs. 41,089/25/=) compulsorily acquired from Land Reference No. 227/V/Mainland South and Kenya Shillings Sixty Three Thousand Nine Ninety Seven Hundred and Fifty cents (Kshs. 63,997/50/=) compulsorily acquired from L.R No. 229/IV/Mainland South.j.For L.R No.227/IV/Mainland South, the Commissioner of Lands duly compensated A.A Basheikh of P.O Box 80840 Mombasa as per the compensation award by Registered post, dated 15th May 1979. (Annexed herein and marked as “NLC - 4” was a copy of the Certificate of Posting and a list of the registered postal packets.)k.For L.R No.290/IV/Mainland South, the Commissioner of Lands duly compensated Munshiram & Co Limited of P.O Box 40754 Nairobi and the payment was made as per the compensation award through the High Court of Kenya, Mombasa a/c Dayambai Mohamedali Essayi Bhaijee.(Annexed herein and marked as “NLC - 5” was a copy of the payment schedule.)l.The 3rd Respondent affirmed that the valuation provided the correct compensation assessed by competent valuation officers who undertook field inspections and collected supporting data as per standards valuation procedure guided by among others international valuation standards and the dictates of the schedule to the Land Acquisition Act, Cap 295 (now repealed) which was applicable prior to the formulation and publication of the Land (assessment of just compensation) rules of 2017.m.The Commissioner of Lands, followed the due process of acquisition under the provisions of Part II of the Land Acquisition Act. Cap 295. and already made full payment of the compensation award. The instant Petition is a gross abuse of the Court process.n.The Petition raised no constitutional issues capable of determination by this Honourable Court.
The 1st, 2nd, 4th and 5th Respondents Response
18.The 1st, 2nd, 4th and 5th Respondents through a 27 Paragraphed Answer to Petition dated 3rd June, 2022 opposed the Petition as follows:a.The Petition was misconceived, vexatious and an abuse of the process of court.b.The Petitioner had no capacity and or authority to deal in and or claim compensation in respect of LR No. 227/IV/Mainland South and LR No. 229/IV/ Mainland South as the properties were never listed as part of the estate of the late Dayambi Mohamed Ali.c.The land parcel No.77/IV/Mainland South and land parcel 81/IV/Mainland South did not exist as the registers for the alleged parcels of land were closed on sub - division in the 1960 as per document No. 1 on the List of Documents.d.The land parcel No.77/IV/Mainland South was sub - divided into Land reference numbers No. 226/IV/Mainland South and Land Reference Numbers 227/IV/Mainland South.e.The land parcel No.81/IV/Mainland South was sub - divided into LR No. 228/IV/Mainland South and LR No. 229/IV/Mainland South.f.Part of land parcel No.77/IV/Mainland South and 81/IV/ Mainland South to wit; LR No. 226/IV/Mainland South and LR No. 228/IV/Mainland South were compulsorily acquired by the crown in the year 1960 as in Document No. 2 and 3 on the List of Documents.g.After the compulsory acquisition of LR No. 226/IV/Mainland South and LR No. 228/IV/ Mainland South in 1960 land parcel LR No. 227/IV/Mainland South and LR No.229/IV/Mainland South remained as per document No. 4 and 5 of the List of Documents.h.Vide a conveyance instrument made on 24 September 1969 what remained of land parcel No.77/IV/Mainland South and 81/IV/Mainland South after the compulsory acquisition of 1960 was transferred from M. E. Bhaijee and Company (estates) Limited to Dayambai Mohamedali Essaji Bhaije as evidenced by Document No. 6 on the List of Documents.i.On 16th of October 1969 the registration regime of the suit properties converted to the Registered Land Act and the titles issued under the Land Titles Ordinance/Act cancelled as seen in Document No. 7 and 8 on the List of Documents.j.The certificates of lease were issued in favour of Dayambai Mohamedali Essaji Bhaije for the remainder of land parcel being the remainder of LR No. 227/IV/Mainland South and LR No. 229/IV/ Mainland South.k.Therefore, it was not possible that as at 25th October,1977,when Gazette Notice No 3075 and 3076 were issued, land parcels No.77/IV/Mainland South and 81/IV/ Mainland South were in existence.l.Vide Gazette Notice No 3075 of 25th October, 1977 issued pursuant to Section 6 of the Land Acquisition Act,1968 the Government of Kenya Issued a Notice of intention to acquire LR No.227/IV/Mainland South and LR No. 229/IV/ Mainland South for Mtongwe Rifle Range and Naval Dockyard extension as is in Document No. 9 on the List of Documents.m.Vide Gazette Notice No 3076 of 25th October, 1975 issued pursuant to Section 9(1)of the Land Acquisition Act,1968 the Government of Kenya issued a Notice of an Inquiry to be held on 20th February, 1978 in the lands office at Treasury Square, Mombasa for hearing of claims of compensation (in relation to LR No. 227/IV/Mainland South, LR No. 229/IV/Mainland South and other parcels as is in Document No. 9 on the List of Documents.n.Persons interested in the suit parcels of land were requested to deliver a written claim for compensation.o.On 20th February, 1978 an inquiry was conducted.p.An award of Kenya Shillings Fourty One Thousand and Eighty Nine Twenty five cents (Kshs. 41,089/25) was made in respect of LR No. 227/IV/ Mainland South and Kenya Shillings Sixty Three Thousand Nine Ninety Seven Hundred and Fifty cents (Kshs. 63,997/50/=) was made for LR No.229/IV/Mainland South as was in Document No. 10 on the List of Documents.q.On 15th May,1979 the Chief Valuer forwarded cheques for the above stated amounts of money to the proprietor’s address being P. O. Box 80928 Mombasa as evidenced by Document No. 11 on the List of Documents.r.On 10th September, 1979 Notices of Taking possession and Vesting of Land in Government in respect of LR No. 227/IV/Mainland South and LR No. 229/IV/ Mainland South were issued pursuant to section 19 of the Land Acquisition Act, 1968 as was in Document No.12 and 13 on the List of Documents.s.The Notices of taking possession was sent by registered post to The Registrar of Titles, Municipal Council of Mombasa, The Provincial valuer, Mombasa. Assistant Commissioner of Lands, Director of Survey and Dayambai Mohamedali Bhaijee C/o Noorali M.S. Bhaijee of P.O. Box 80923, Mombasa.t.Upon taking possession on 10th September,1979, the suit parcels of land were vested in the Government absolutely free from encumbrances per Section 19(4) of the Land Acquisition Act,1968.u.Vide the Notice of taking possession dated 10th September, 1979 mentioned hereinabove the Commissioner of Lands required the person having possession of the documents of title to deliver them to the Registrar of Title, Mombasa for cancellation per Section 20(1) of the Land Acquisition Act, 1968.v.The parcels of land compulsorily acquired were consolidated into one parcel of land (Mombasa/ Mainland South /Block 2/263) and a Certificate of Lease issued in favour of The Cabinet Secretary to The National Treasury as Trustee for the Department of Defence as was in Document No.14 and 15 on the List of Documents.w.The Cabinet Secretary for the National Treasury had a right to be heard before any of the orders sought could be granted for reason that grant of the orders sought would greatly prejudice his right to property.x.The Petition as drafted contravened, the Cabinet Secretary to the National Treasury’s right to be heard.y.The Constitution of Kenya 2010 was not in existence in the years 1977-1979 when the Compulsory Acquisition the subject matter of this petition occurred.z.The claim by the Petitioner for recovery of land is barred by limitation by virtue of Section 7 of the Limitation of Actions Act having been brought more than 43 years after conclusion of the compulsory acquisition process.aa.If the owner of the suit properties failed cash the cheque forwarded to him, which was denied, he was only entitled to the award made plus interest from the date of taking possession to the date of payment per Section 16 of the Land Acquisition Act 1968 being the act applicable in the year 1979 at the time of taking possession.
The documents relied on by the 1st, 2nd , 4th & 5th Respondents.a.Certificate of Ownership for Land parcel MS/IV/77/1 & MS/IV/81 Mainland issued under the Land Titles Ordinance;b.Land Registry reference sheet,c.Certificate of Notice of taking possession.d.Deed Plan 86714.e.Schedule of Notice of Intention to Acquire.f.Schedule of Notice of taking possession.g.Payment receipt.h.Record of Payment to High Court of Kenya for the Account of Dayambai Mohammedali Essaji Bhaijee;i.Record of Registered Postage.j.Schedule of Payments.k.Record of attendance dates for inquiry.
VI. Submissions
19.On 17th November, 2022 the Court directed a hearing be scheduled for 7th February, 2023 for highlighting of submissions after which the court scheduled for delivery of the judgment on notice accordingly.
20.On 7th February, 2023, in addition to the already filed written submissions, all the parties here were accorded ample opportunity to highlight there submissions orally. This was a duty that Mr. Mugoye Advocate for the Petitioner, Mr. E. Makuto Advocate for the 1st, 2nd, 4th and 5th Respondents and Mr. S. Mbuthia Advocate for the 3rd Respondents executed with great diligence, devotion and dedication. The Honorable Court profusely expressed its gratitude to these Learned Counsel for exhibiting high professional resilience, dignity, integrity and decorum.
A. The Written Submissions by the Petitioners.
21.On 3rd October, 2022, the Learned Counsel for the Petitioner the Law firm of Messrs. Mugoye & Associates Advocates filed their written Submissions dated 22nd September, 2022. Mr. Mugoye Advocate commenced his submission by stating that he relied on the List of documents dated 7th October, 2022 by the Petitioner. The Petitioner was the duly appointed Legal Administrator to the estate of his late mother Dayambai Bhaijee who died intestate on 3rd January, 1973 (hereinafter referred to as “The Deceased”). The Petitioner acquired the suit property by way of transmission and which the whole of it was acquired and occupied by the Kenya Navy at Mtongwe, in the County of Mombasa as shall be stated herein below. It was his submission The Learned Counsel stated that the Petitioner herein filed this Petition dated 23rd February, 2022 together with Affidavit in Support of the Petition and filed in Court on the 3rd March 2022 seeking for the following reliefs:a.A declaration that compulsory acquisition of 8.2 Acres of the Petitioner's land by Land Acquisition (now repealed) violated the Petitioner’s constitutional rights the Government.b.A Declaration that the purported gazettement for acquisition via gazette notice numbers 3075 of 28th October,1997 and GN 3209 of 10th October, 1978 gazzetted as LR. No. 227/IV/Mainland North and 229/IV/Mainland North respectively purporting to be Petitioners, did not take place and if at all it did, it was null and void ab initio for want of due process.c.A Declaration that any document of title that may have emerged from the said gazettement for acquisition via gazette notice numbers 3075 of 28th October, 1977 and GN 3209 of 10th October, 1978, gazetted as LR. No.227/IV/Mainland North and 229/IV/Mainland North respectively are null and void ab initio.d.A declaration that the 3rd Respondents unilateral award of compensation dated 15th May 1979 more than six (6) years after of the then registered owner Constitution and Section 8 of the Land Acquisition Act.e.A Declaration that the Petitioner’s fundamental rights and freedoms as enshrined under Articles 40 (1). 40 (2) (a), 40 (3) (b) (i)47. (1) and 47 (2) of the Constitution of Kenya 2010,have been contravened and infringed upon by the Respondents herein.f.A Declaration that the Petitioner's proprietary interests over Titles of Land Reference Numbers CR 400 Plot No. 77/1V/MS (2.0 Acres) & CR 2117/ Plot No. acquired by the State.g.A Declaration that the Petitioner herein was entitled to prompt, just and adequate compensation in full within the meaning and tenor of Article 40 (3) (b) (i) the sum acquisition of his proprietary interests over Titles of Land Reference Numbers CR 400 PLOT NO. 77/IV/MS (2.0 Acres) & CR 2117/ PLOT NO. 81/IV/MS (6.2 Acres), Mtongwe Area, Mombasa County.h.General, exemplary and aggravated damages under Article 23(3) of the Constitution of Kenya 2010, for the unconstitutional conduct of the 1st, 2nd and 3rd Respondents.i.Any other orders and directions as this Honourable Court may consider appropriate.j.Costs of the Petition.
22.The Learned Counsel submitted that the Petition was fixed for mention on the 28th March 2022 when the Honourable Court issued directions inter alia that the Petition be disposed of by way of written submissions. The Court then fixed the matter for hearing on the 31st May 2022. The Respondents were granted leave to file their respective responses within certain timelines and submissions. The 3rd Respondent filed its Memorandum of Appearance on the 31st March 2022 and Grounds of Opposition dated 30th March 2022 filed in Court on 12th May 2022 stating that they had no role to play since by then when the purported compulsory acquisition took place, the National Land Commission was yet to be constituted. On the 31st May 2022,the 1st, 2nd 4th and 5th Respondents again had not filed their respective responses and granted a further extension of fourteen (14) days. The 3rd Respondent had equally filed their written submissions dated 10th June 2022. However, the 1st 2nd , 4th and 5th Respondents filed their Answer to Petition dated 3rd June 2022. In the said answer to the Petition, the said Respondents referred to certain documents contained in a List of Documents numbered (sic) 1 to 15 but the said list of documents was not served upon the Petitioner. The Petitioner’s Advocate served the said State Counsel with a Notice to Produce dated 14th June 2022. But the said Counsel failed to file and/or serve the Petitioner with the documents enumerated therein.
23.The Learned Counsel argued that when the matter came up for hearing and/or highlighting of the submissions on the 26th July 2022, the Advocate for the said Respondents one Mr. Makuto, a State Counsel representing the Attorney General informed the Court that he had indeed filed the List of Documents but forgot to serve the same upon the Petitioner’s Advocates who had travelled all the way from Nairobi to Mombasa for the hearing. Further to that, it followed that the said State Counsel had during the call over for another matter on the day’s Cause List alleged and without notice to the Petitioner, stated to the Court that the matter was related to another Petition Noh. 44 OF 2019 and that the same were to be mentioned and/or heard together on the 13th October 2022. It forced the Petitioner’s Advocate to mention the matter since it was not be called out again. The Court upon hearing rival submissions on the issue of purported consolidation issued “inter alia” made the following directions:-i.The 1st, 2nd, 4th and 5th Respondents be and hereby directed to serve the Petitioner with:-a.All the documents enumerated on the notice to produce.b.All the copies of the Court Petition No. 44 of 2019 within the next seven days without fail.ii.The matter be slated for hearing on 13th October, 2022 (emphasis supplied).
24.It was the contention of the Learned Counsel that the Petitioner had established that the said State Counsel had misled the Court to believe that the List of Documents had been filed while they had not. The said State Counsel had not served the Petitioner’s Advocate with the said pleadings referred to in the said Court directions 1(b).This prompted the Petitioner’s Advocate to inform the Court by a letter dated 24th August 2022. It was their assertion, that if anything had been filed after the said date or after the 26th July 2022, it was filed out of time and the same should be expunged from the Court records because it had been filed without leave and after misrepresentation. Since they have not been served with the said pleadings of the Petition No. 44 OF 2019, therefore they were unable to comment anything on the same save that the two said Petitions could not be consolidated or heard together since the Petitioner was not privy to the causes of the several hundreds of Petitioners in the other Petition. Furthermore, the said Petitions were being handled and/or heard by the same court, meaning that there could not be any conflicting decisions if any at all.
25.The Learned Counsel averred that the Petitioner was the proprietor of titles of land known as Land Referenced Numbers CR 400 Plot No. 77/IV/MS measuring 2.0 acres and CR 2117/Plot No. 81/IV/MS measuring 6.2 acres all totaling 8.2 acres. Indeed, todate they were still registered in his names. To the Petitioner’s surprise he established sometimes in 2018 that the said suit properties had been illegally compulsorily acquired by the Government of Kenya for the purposes of use by the Department of Defence Kenya Navy as Mtongwe Rifle Range and Naval Dockyard Extension, Mombasa. He stated that the suit land was acquired by the Defence in the year 1979. The process was started and concluded after the death of the initial registered owner – the mother to the Petitioner.
26.He argued that that the suit properties were initially registered in the names of the Petitioner’s late mother one Dayambai Bhaijee who died on the 03rd January, 1973 as shown in the Certificate of Death. The Petitioner filed succession proceedings with the Kadhi’s Court in Mombasa being Succession Cause No. 174 of 2018 where the Court issued on the 16th October, 2020 the following orders:-i.“That the deceased is survived by one son namely Najmudin Noorali Mohamedali, a Kenya citizen and a holder of ID No. 16001292ii.That the Registrar of Lands Mombasa to vest and or transfer Plot No.’s 81/IV/MS and Plot No. 77/IV/MS to the Petitioner Najmudin Noorali Mohamedali.”
27.These orders had not been vacated and the Petitioner indeed remains the registered proprietors of the suit parcels by way of submission. Indeed, the certificate of postal search of 20th November, 2018 and the one dated 11th January, 2022 clearly showed that the Petitioner was and/or is still the proprietor of the Plots known as Titles Numbers 81/IV/MS (6.2 acres) and 77/IV/MS (2.0 acres) respectively but the Kenya Defence Forces occupied the parcels of land illegally and without compensation. The Petitioner by his letters dated 22nd October, 2020 and 1st November, 2020 through his Advocates on record issued a notice to the 5th Respondent of intention to sue the 1st to 3rd Respondents as it is required under the Government Proceedings Act Chapter 21 of the Laws of Kenya.
28.The Learned Counsel argument was that the 2nd Respondent addressing the Petitioner’s concerns of illegal occupation of his land by the military (Kenya Navy), wrote to the 5th Respondent with a copy to the Petitioner’s Advocates as follows:-
29.The Learned Counsel submitted that 2nd Respondent’s purported award of 1.460 acres from Plot No. 81/IV/MS that was purportedly partitioned into Plot No. 228 (81/1) and 229 (81/2) on 1st June, 1960,was irregular and unlawful since there was no inquiry made and intention to acquire land were issued to warrant the alleged compensation amount that was not made at all. The 2nd Respondent’s purported award of 1.093 acres from Plot No. 77/IV/MS that was purported to have been partitioned into Plot No. 226 (77/1) and Plot No. 227 (77/2) on 1st June 1960 was irregular since there was no inquiry made and intention to acquire land that were issued to warrant the alleged compensation amount that was not made at all.
30.The Learned Counsel asserted that furthermore, if at all the 2nd Respondent only intended to and compulsorily acquired 2.553 acres (which is, however, denied) out of the total 8.2 Acres of land, then where is the remaining portions? The 1st Respondent is in occupation of the entire suit properties. The 1st Respondent on 22nd March 2022 after the filing of this Petition confirmed the compulsory acquisition to the Petitioner’s Advocates where it stated that it does not have any interest on land registration number MN/IUV/77 that the Petitioner did not have any claim over the same. If need the whole process of acquisition was followed” as suggested by the 2nd Respondent in its letter dated 2nd February 2022:a.Then why is the property still registered in the Petitioner’s name?b.To whom were the notices contemplated under Section 6 of the Land Acquisitionc.No notice was served.d.To whom was compensation paid since the Petitioner's mother had long died?e.The estate of the Petitioner’s late mother was never compensated. To whom were the cheques paid to?f.The Petitioner still held all the two (2) original certificates of ownership in his names despite of the fact that the Kenya Navy already occupied and took possession of the whole parcels of land.
31.The Learned Counsel stressed that the Petitioner contended that the military continued to occupy the entire parcels of land, having unlawfully acquired the same and without any compensation and his rights under Land Acquisition Act now replaced by the Land Act, 2012 and the Constitution of Kenya had been violated. By most recent valuation, the value of the property was assessed to be a sum of Kenya shillings eight hundred million (Kshs. 800, 000, 000/-) [Exhibit 8 marked as no.1 of the Petitioner’s Additional List of documents]. The Learned Counsel urged the Court to be pleased to grant the orders prayed for in this Petition owing to the fact that if the aforementioned violations go unaddressed and without remedy the Respondents will be setting an unconstitutional precedent and be acting without the law and in contravention of the constitution. The Constitution will have been infringed.
32.The issues for determination as per the Learned Counsel were as follows:i.Whether the Respondents compulsory acquired the Petitioner’s suit properties measuring 8.2 Acres?ii.Whether the gazettement for acquisition via gazette notice numbers 3975 of 28th October, 1977 and GN 3209 of 10th October, 1978 gazette as Plot No. 227/IV/Mainland North and 229/IV/Mainland North respectively purporting to be Petitioners was null and void ab initio?iii.Whether partition of Plot No. 227/IV/Mainland North and 229/IV/Mainland North that did not belong to the Petitioner was valid?iv.Whether the 2nd Respondents unilateral award of compensation dated 15th May, 1979, more than six (6) years after the death of the then registered owner could be regarded as compensation contemplated by Article 40 (3) (b) of the Constitution and Section 8 of the Land Acquisition Act?v.Whether the Petitioner’s fundamental rights and freedoms as enshrined under Article 40(1), 40(2) (a), 40 (3) (b)(i), 47(1) and 47 (2) of the Constitution of Kenya, 2010 had been contravened and infringed upon by the Respondents?vi.Whether the Petitioner was entitled to general, exemplary and aggravated damages under Article 23 (3) of the Constitution of Kenya,2010 for the unconstitutional conduct of the Respondents.
33.On the issue of whether the Respondents compulsory acquired the Petitioner’s suit properties measuring 8.2 Acres, the Learned Counsel submitted that the 1st, 2nd, 4th and 5th Respondents in their response to the Petition by way of Answer to the Petition dated 3rd June 2022 and filed in Court on 6th June 2022 admitted at paragraphs 6 and stated as follows:-
34.The Learned Counsel submitted that at Paragraph 3 the Respondents proceeded to confirm it was the Government that forcefully acquired the Petitioner’s land as follows:
35.At paragraph 4,the Respondents states:
36.At paragraph 5, the Respondents states.
37.The Learned Counsel argued that but if indeed “the whole process of acquisition was followed” as suggested by the 2nd Respondent in its letter dated 2nd February 202 [Exhibit 7 marked as NNM-9 on page 59 of the Petitioner’s Bundle]:i.Then why was the property still registered in the Petitioner's name?ii.To whom were the notices contemplated under Section 6 of the Land Acquisition Act (Repealed) given?iii.No notice was served.iv.To whom was compensation paid since the Petitioner's mother had long died?v.The estate of the Petitioner’s late mother was never compensated.vi.The Petitioner still held all the two (2) original certificates of ownership.
38.The Learned Counsel submitted that it was abundantly clear that the suit properties were earmarked for compulsory acquisition by the Government of Kenya for purposes of use by the Department of Defence who had been occupying the land and had fenced it off and marked it as a “no - entry” zone. The whole process of the purported compulsory acquisition of the Petitioner’s land was completely flawed since there were no notices made to the Petitioner nor his late mother. The 2nd Respondent’s purported award of 1.460 acres from Plot No. 81/IV/MS that purportedly partitioned into Plot No. 228 (Orig.81/1/MS) and 226(Orig. 77/1/MS) on 1st June, 1960 was irregular and unlawful since there was no inquiry made and intention to acquire land was issued to warrant the alleged compensation amount that was never made at all.
39.He further asserted that secondly, several years [five (5)] after the death of the Petitioner’s mother, Government of Kenya was at it again for the remaining portions of Plot No. 81/IV/MS that purportedly were of resultant partitions into Plot No. 227 (Orig. 77/2/MS) and 229 (Orig. 81/2/MS) were earmarked for compulsory acquisition by the Government of Kenya for purposes of use by the Department of Defence vide gazette notices No. 3075 of 28th October,1977 and GN 3209 of 10th October, 1978, which was done by the Kenya Navy who continues to be occupying the land and have fenced it off. The Land Acquisition Act (now repealed), which was operative as at the publication of the Gazette for acquisition via Gazette Notice Nos. 3075 of 28th October, 1977 and GN 3209 of 10th October,1978, stated at Sections 3 and 4 thereof that;
40.The subsequent sections read;
41.The Learned Counsel submitted that the Land Act, No.6 of 2012, the Land Acquisition Act, (Now repealed) and now contain the Compulsory Acquisition provisions under Part VIII. To buttress his argument, and in support of the above propositions he relied on the case of “Mathatani Limited – Versus - Commissioner of Lands & 5 Others [2013] eKLR in similar circumstances where the procedure for compulsory acquisition was not followed and unilateral assessment of compensation of a paltry sum was awarded was not approved by the Court and the Honourable Judge held as follows:-
42.The Learned Counsel also relied on the case of ”Isaiah Otiato & 6 Others – Versus - County Government Of Vihiga (2018) eKLR the Court held that:-
43.Additionally, the Learned Counsel cited the case of:- “Attorney General – Versus - Zinj Limited (Petition 1 of 2020) [2021] KESC 23 (KLR) (Civ)(3 December 2021) the Court held that:
44.The Learned Counsel opined that if at all the 2nd Respondent stated as confirmed by the 1st Respondent that they were only interested on portions of the said suit properties, why then did they occupy the entire parcel of land? The answer was simple, the military forcefully occupied the suit properties unlawfully acquired the same and without any compensation and the Petitioner’s rights under the Land Act, 2012 and the Constitution of Kenya had been trampled upon by the State. The Petitioner had a right to be compensated, fully for any compulsory acquisition by the Respondents. By most recent valuation, the value of the property was assessed to be a sum of Kenya Shillings Eight Hundred Million (Kshs. 800,000,000/-) [Exhibit 8 marked as no. 1 of the Petitioner’s Additional List of documents] of they urged the Honorable Court to allow as prayed for in the Petition.
45.On the issue of whether the gazettement for acquisition via gazette notice numbers 3975 of 28th October, 1977 and GN 3209 of 10th October, 1978 gazette as Plot No. 227/IV/Mainland North and 229/IV/Mainland North respectively purporting to be Petitioners was null and void ab initio the Learned Counsel submitted that up and until the year 2018 when the Petitioner discovered that the suit properties had been illegally compulsorily acquired by the Government of Kenya for the purposes of use by the Department of Defence Kenya Navy as Mtongwe Rifle Range and Naval Dockyard Extension, Mombasa, the Petitioner had in his possession the titles to the suit properties. Furthermore, the Certificates of official searches still revealed that the Petitioner was the duly registered owners of the suit properties.
46.He argued that under the provision of Section 9(1) of the Land Acquisition Act (now repealed) that was applicable it provided as follows:-
47.He submitted that the properties referred to in the said gazette notices did not disclose the names of the proprietors but most importantly did not belong to the Petitioner’s mother who was then the registered proprietor and he had no claim over the same. It therefore, followed that the said notices could not be attributed to belong to the Petitioner. Thirdly, the Petitioner never received those notices as alleged by the Respondents because by then, the Petitioner’s mother was long deceased. As stated in the case of:- “Mathatani Limited’s case (Supra) the Court held that:-
48.On whether the partition of Plot No. 227/IV/Mainland North and 229/IV/Mainland North that did not belong to the Petitioner was valid, he submitted that as elucidated above, to date the Petitioner had not been compensated over the compulsory acquisition of the suit properties that had been illegally compulsorily acquired by the Government of Kenya for the purposes of use by the Department of Defence Kenya Navy as Mtongwe Rifle Range and Naval Dockyard Extension, Mombasa. The Petitioner had in his possession the titles to the suit properties. Furthermore, the Certificates of official searches still revealed that the Petitioner was the duly registered owners of the suit properties.
49.However, the Learned Counsel submitted that the properties referred to in the said gazette notices did not disclose the names of the proprietors but most importantly did not belong to the late Petitioner's mother who was then the registered proprietor and he had no claim over the same. Thus, it followed that the said notices could not be attributed to refer to the Petitioner’s suit properties that were purportedly partitioned as a result of the said notices and thus earmarked them for compulsory acquisition. Therefore, any purported partition of the Petitioner’s land based on illegal notices riddled with wrong property titles is therefore invalid. Thirdly, the Petitioner never received those notices as alleged by the Respondents because by then, the Petitioner’s mother was long deceased.
50.The Learned Counsel submitted that under the provision of Section 20 of the Land Acquisition Act provided that:-1.Where the documents evidencing title to the land acquired have not been previously delivered to him, the Commissioner shall, in writing, require the person having possession of the documents of title to deliver them to the Registrar, and thereupon that person shall forthwith deliver the documents to the Registrar.2.On receipt of the documents of title, the Registrar shall:-(a)cancel the title documents if the whole of the land comprised in the documents has been acquired;(b)if only part of the land comprised in the documents has been acquired, the Registrar shall register the resultant parcels and cause to be issued, to the parties, title documents in respect of the resultant parcels.3.If the documents are not forthcoming, the Registrar will cause an entry to be made in the register recording the acquisition of the land under this Act.
51.He averred that there is nowhere they had been told that any such procedures were ever followed by the 3rd Respondent’s predecessor, the Commissioner of Lands and the 1st Respondent. In support of the above proposition, he relied on the case of “Mathatani Limited’s (supra).
52.The Learned Counsel submitted that whether the 2nd Respondents unilateral award of compensation dated 15th May, 1979, more than six (6) years after the death of the then registered owner could be regarded as compensation contemplated by Article 40 (3) (b) of the Constitution and the provision of Section 8 of the Land Acquisition Act, Article 259(1)of the Constitution of Kenya,2010 provides that the Constitution shall be interpreted in a manner that-(a) promotes its purposes, values and principles; advocates the rule of law, and the human rights and fundamental freedoms in the Bill of Rights: permits the development of the law; and contributes to good governance. The Land Acquisition Act (now repealed), which was operative as at the publication of the Gazette for acquisition via Gazette Notice Nos. 3075 of 28th October, 1977 and GN 3209 of 10th October, 1978, stated at the provision of Sections 3 and 4 thereof that:-
53.The subsequent Sections read;
54.Section 13(1) reads:-
55.It was his submission that the purported unilateral award of compensation six (6) years after the registered owner of the land at the time, the petitioner’s mother, had died, was not compensation. The repealed Land Acquisition Act called for prompt payment of compensation which has been emphasized by the Land Act, 2012. The Respondents have also not proved before this Honourable Court who received the purported compensation if at all the registered proprietor was already deceased on the purported date of payment of the compensation. In support of the above proposition, we rely on the case of Mathatani Limited’s (supra) the Court held and adopted the Court of Appeal decision in case of “Commissioner of Lands & Another – Versus - Coastal Aquaculture Ltd-C.A.252/96:-
56.He argued that taking that the initial registered owner was long dead, they failed to understand how the Minister through the Commissioner of Lands arrived at the award without the participation of the person whose interest will be affected by the compulsory acquisition. While dealing with compensation for compulsory acquisition of land, the court in the case of “Patrick Musimba – Versus - National Land Commission & 4 Others [2016] eKLR
57.On the issue of whether the Petitioner’s fundamental rights and freedoms as enshrined under Article 40 (1), 40(2)(a), 40(3)(b)(i), 47(1) and 47(2) of the Constitution of Kenya, 2010, had been contravened and infringed upon by the Respondents, the Learned Counsel submitted that Article 40 of the Constitution of Kenya, 2010 provides that every person has the right to acquire and own property and that the State shall not deprive a person of property of any description. The compulsory acquisition of the Petitioner’s land without any just compensation had denied him the chance to enjoy his property and derive any benefit from it. This was a direct violation of his right to property enshrined under the Constitution. The 1st, 2nd, 3rd, 4th and 5th Respondents had gone further to deny the Petitioner his right to fair administrative action provided under Article 47. It stated that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. The act of denying the Petitioner his right to enjoy his land and prompt compensation forty-five years later, defeats the spirit of the Constitution which calls for expeditious and efficient dealing of matters. This is a gross violation of the Petitioner’s constitutional rights.
58.The Learned Counsel submitted that while dealing with compensation for compulsory acquisition of land, the court in the case of ‘Patrick Musimba – Versus - National Land Commission & 4 Others [2016] eKLR.
59.The Learned Counsel submitted that the Petitioner whose land was compulsorily acquired ought to be compensated in full due to the acquisition of his proprietary interest. In support of this, they relied on the case of “Raticliffe – Versus - Evans (1892) QB 524 with regard to damages, the Court stated that:-
60.The Learned Counsel made reference to the case of “Commissioner of Lands & Another – Versus - Coastal Aquaculture Limited Civil Appeal No. 252 of 1996 KLR (E&L 264) where the Court of Appeal held that in cases of compulsory acquisition the government is required to strictly adhere to the provisions of the Constitution and the Land Acquisition Act (now repealed). In the case “Arnacherry Limited – Versus - Attorney General (2014) eKLR the court held that:-
61.The Learned Counsel submitted that if land was so acquired the just compensation is to be paid promptly in full to persons whose interests in land had been determined. This was 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. As was held in case “Ravaspaul Kyalo Mutisya – Versus -National Land Commission eKLR, any interests accruing due to the delay in payment of compensation and denial of enjoyment of proprietary interests should be paid at the instance of institution of the suit as both are joined at the hip.
62.The Learned Counsel on the issue of whether the Petitioner was entitled to general, exemplary and aggravated damages under Article 23(3) of the Constitution of Kenya, 2010 for the unconstitutional conduct of the Respondents submitted that damages is the primary remedy for breach of a contract. The major objective of awarding damages for being deprived of use to his land that the Government has deprived of use for sixty two (62) years for the first alleged partition and forty three (43)years for the alleged remainder partitions of 1978 and 1979 respectively. In support of the above proposition they relied on the case of “Katra Jama Issa – Versus - Attorney General & 3 Others [2018] eKLR where the learned Judge adopted the English decision in the case of “Rookes – Versus - Barnard (1964) 1 All ER 367,where the Court held that:
63.The Learned Counsel argued that the act of 1st Respondent compulsory acquiring the Petitioner’s land by force being the Kenya Navy and not compensating the owner was one that qualifies for general and exemplary damages which they urged the court to award. The Petitioner had proved that his property was compulsorily acquired by the Respondents and no just compensation was paid. It was due to the notorious occupation of the suit property that the Petitioner had been denied his right to enjoy his property and thus should be compensated and all interests accruing thereof paid.
B. The Written Submission by the 3rd Respondent
64.On 10th June, 2022, the Learned Counsel for the 3rd Respondent from the National Land Commission submitted that the Petitioner’s filed Petition dated 23rd February,2022 was opposed by the 3rd Respondent. Mr. S. Mbuthia Advocate stated that they had filed our Grounds of opposition dated 30th March, 2022 and they fully relied on the contents of the Grounds of Opposition.
65.The Learned Counsel submitted that the Petitioner in this matter alleged he was the proprietor of Land Reference Number CR 400 PLOT NO.77/IV/MS measuring 2.0 acres and CR 2117/PLOT NO.81/IV/MS measuring 6.2 acres. That in 2018, he established that the suit properties were illegally compulsorily acquired by the Government of Kenya for the purposes of use by the Department of Defence Kenya Navy as Mtongwe Rifle Range and Naval Dockyard Extension, Mombasa. The Petitioner was claiming that he was the registered proprietor of the suit parcels and demanded for compensation for compulsory acquisition of his land from the 1st Respondent. However, the 2nd Respondent in a letter copied to him wrote to the 5th Respondent informing them that the suit properties were gazetted for acquisition via Gazette Notice No.3075 of 28th October, 1977 and Gazette Notice No. 3209 of 10th October, 1978. That the whole process of acquisition was followed and the owner awarded a sum of Kenya Shillings Forty One Thousand and Eighty-Nine Shillings and Twenty-Five Cents (Kshs. 41,089.25) in respect of 227/IV/MS and a sum of Kenya Shillings Sixty Three Thousand, Nine Hundred and Ninety Seven Shillings and Fifty Cents Kshs. 63,997.50 in respect of 229/IV/MS.
66.The Learned Counsel submitted that the Petitioner contended that the awards were irregular since there was no inquiry made and no intention to acquire land issued. Therefore, the military continued to occupy the entire parcel of land unlawfully and without compensation. He has now filed the instant Petition seeking various declarations of rights, just and adequate compensation and seeking damages under Article 23(3) of the Constitution of Kenya, 2010.
67.The Learned Counsel submitted that the 3rd Respondent opposes the Petition in its entirety. We filed our Grounds of opposition dated 30th March, 2022. The Petitioner in the instant Petition was against the compulsory acquisition of the suit properties which were made via Gazette Notice No. 3075 of 28th October, 1977 and Gazette Notice No. 3209 of 10th October, 1978. It was clear that the provision of Article 67 of the Constitution of Kenya, 2010 provided for the creation of the National Land Commission, it states;
68.The Learned Counsel submitted that however, it was not until 2nd May, 2012 that the National Land Commission Act, 2012·and the Land Act, 2012 came into force. The 3rd Respondent had therefore not been constituted during the compulsory acquisition of the suit properties herein. The 2nd Respondent previously the Commissioner of Lands, had powers to undertaken compulsory acquisition of land for the public benefit under the Land Acquisition Act, Cap 295. The 2nd Respondent confirmed to the Petitioner that they indeed conducted the whole process of acquisition and the award was duly paid to the owner. These records for the period in question were housed by the 2nd Respondent who are better placed to respond and produce documents relating to the alleged acquisition. The Petition was frivolous, misinterpretation of the 3rd Respondent’s mandate and was otherwise intended to embarrass and harass the 3rd Respondent.
69.In conclusion, the Learned Counsel held that the instant Petition was misconceived due to the fact that the allegations made by the Petitioner against the 3rd Respondent were baseless and misinterpretation of the 3rd Respondent’s mandate. The 3rd Respondent had been wrongly enjoined in the proceedings and without cause and they prayed that the same be dismissed against the 3rd Respondent with costs.
C. The Written Submission by the 1st, 2nd, 4th and 5th Respondents
70.On 7th February, 2023, the Learned State Counsel for the 1st, 2nd, 4th and 5th Respondents filed their written submissions dated 6th February, 2023. Mr. Makuto Advocate commenced his submission by recapping on the brief facts and background of the matter from the filed pleadings. He stated that the Petitioner filed a Petition dated 23rd February, 2022 alleging that he was the proprietor of land parcel No.77/IV/Mainland South measuring 2 acres and 81/IV/ Mainland South measuring 6.2 acres. He alleged that sometime in the year 2018 he discovered the suit parcel of land had been illegally acquired by government for purposes of the Department of defence, Kenya Navy as Mtongwe Rifle Range extension, Mombasa.
71.Further, that the Petitioner alleged that he moved court in Mombasa Kadhi’s Court Succession No 174 of 2018 where the court issued orders directing the Land Registrar to register him as owner of the suit properties. In his Petition, he stated that the Petitioner was the owner of the suit property but the Kenya Defence Force occupies the land. Therefore, he sought declarations to the effect that compulsory acquisition of the suit property was illegal null and void and seeks general damages and compensation for the value of the land. In Response to the Petition, the 1st, 2nd, 4th and 5th Respondents filed an answer to Petition dated 3rd day June, of 2022 they also filed a list of documents dated 3rd June, 2022 and a further list of documents dated 16th November, 2022.
72.The Learned Counsel submitted that it is the Respondent’s contention that suit parcel No.77/IV/Mainland South and land parcel 81/IV/ Mainland South do not exist as the registers for the alleged parcels of land were closed on subdivision in 1960 (See document No. 1 on the List of Documents dated 3rd June,2022).The Respondents have attached deed plans No 75827 and 86714 to support this argument. Land parcel No.77/IV/Mainland South was subdivided into LR No.226/IV/Mainland South and LR No. 227/IV/Mainland South and land parcel No.81/IV/Mainland South was subdivided into LR No. 228/IV/Mainland South and LR No.229/IV/Mainland South. The reason for the sub - division was a compulsory acquisition that was done in the year 1960 and endorsement of such acquisition was entered in the title documents availed to Court by the Petitioner themselves.
73.The Learned Counsel submitted that the certificates of title availed to court by the Petitioner had endorsements showing that part of land parcel No.77/IV/Mainland South and 81/IV/ Mainland South to wit; LR No. 226/IV/Mainland South and LR No.228/IV/Mainland South were compulsorily acquired by the crown in the year 1960. He drew the attention of the Honorable Court to entry No. 8 and 10 on the Certificate of title presented to court by the petitioner for land parcel No.81/IV/Mainland South and entry No. 11 on the Certificate presented to court by the Petitioner for land parcel No.77/IV/Mainland South. The certificates of title were also presented as document No. 2 and 3 on the List of Documents dated 3rd June, 2022.
74.The Learned Counsel submitted that after abovementioned the compulsory acquisition of LR No. 226/IV/Mainland South and LR No. 228/IV/Mainland South in the year 1960 land parcel LR No. 227/IV/Mainland South and LR No. 229/IV/Mainland South remained in the deceased’s name. This was further evidenced by a conveyance instrument made on 24th September 1969. In the conveyance instrument only what remained after the compulsory acquisition of land parcel No.77/IV/Mainland south and 81/IV/Mainland South was transferred from M. E. Bhaijee and Company (estates) Limited to Dayambai Mohamedali Essaji Bhaije (See Document No. 6 on the List of Documents on the list of documents dated 3rd June,2022).
75.The Learned Counsel submitted that at this point the Petitioner could not lay claim on land parcel No.77/IV/Mainland south and 81/IV/ Mainland South as a whole in the face of clear evidence that part of the land was acquired in the year 1960. The entries in the copies of title could only be made after presentation of the title to the land’s registry by the owner of the land to facilitate such endorsement. Having established that portions of land parcel No.77/IV/Mainland South and land parcel 81/IV/ Mainland South had already been compulsorily acquired and vested in the Crown from the and the suit parcel of land sub - division, hence the claim by the Petitioner could not stand.
76.The Learned Counsel submitted that vide Gazette Notice No 3075 of 25th October, 1977, issued pursuant to the provision of Section 6 of the Land Acquisition Act.1968 the Government of Kenya notified the public of its intention to acquire LR No. 227/IV/Mainland South and LR No.229/IV/ Mainland South for the Mtongwe Rifle Range and Naval Dockyard extension (See Document No.9 on the List of Documents dated 3rd June,2022). Vide Gazette Notice No 3076 of 25th October,1975 (issued pursuant to Section 9(1) of the Land Acquisition Act, 1968) the Government of Kenya issued a Notice of Inquiry to be held on 20th February,1978 in the land’s office at Treasury Square, Mombasa. The hearing related to claims of compensation in relation to LR No. 227/IV/Mainland South.LR No. 229/IV/ Mainland South and other parcels and other parcels of land (Document No. 9 on the List of Documents dated 3rd June,2022). Persons interested in the suit parcels of land to be acquired were requested to deliver a written claim for compensation. On 20th February, 1978 an inquiry was conducted and an award of a sum of Kenya Shillings Forty One Thousand and Eighty-Nine Shillings and Twenty-Five Cents (Kshs. 41,089/25) was made in respect of LR No.227/IV/ Mainland South and a sum of Kenya Shillings Sixty Three Thousand and Nine Hundred Ninety Seven Shillings and Fifty Cents (Kshs. 63,997/50) was made for LR No. 229/IV/Mainland South (Document No.10 on the List of Documents dated 3rd June, 2022).
77.The Learned Counsel submitted that on 15th May,1979 the Chief Valuer forwarded cheques for the above stated amounts of money to the proprietor’s address being P. O. Box 80928 Mombasa (Document No. 11 on the List of Documents dated 3rd June, 2022). Being uncollected the funds were then forwarded to the Deputy Registrar High Court of Kenya (Document No. 14 on the List of Documents dated 16th November, 2022). The deposit into the High Court of Kenya was undertaken in line with the provision of Section 13 (2) of the Land Acquisition Act 1968 (now repealed). The provision of Section 13 of the Act provided as follows:-
78.The Learned Counsel averred that on 10th September, 1979 a Notices of Taking possession and Vesting of Land in Government in respect of LR No.227/IV/Mainland South and LR No. 229/IV/ Mainland South were issued pursuant to Section 19 of the Land Acquisition Act,1968(Document Numbers 12 and 13 on the List of Documents dated 3rd June, 2022).
79.He further argued that the Notices of taking possession was sent by registered post to The Registrar of Titles. Municipal Council of Mombasa, The Provincial valuer, Mombasa, Assistant Commissioner of Lands, Director of Survey and Dayambai Mohamedali Bhaijee C/o Noorali M.S.Bhaijee of P.O. Box 80923, Mombasa. By the Notice of taking possession dated 10th September, 1979 mentioned hereinabove the Commissioner of Lands required persons having possession of the documents of title to deliver them to the Registrar of Title, Mombasa for cancellation per Section 20 (1) of the Land Acquisition Act,1968.
80.His contention was that upon taking possession on 10th September, 1979, the suit parcels of land were vested in the Government absolutely free from encumbrances per section 19(4) of the Land Acquisition Act, 1968. Section 19 (1) of the Land Acquisition Act (now repealed) provided as follows:-
81.And the provision of Sub - Section 4 of the said Section provides:
82.The Learned Counsel submitted that this position was affirmed in the supreme court case of Town Council of case of “Awendo – Versus - Nelson O Onyango & 13 others;Abdul Malik Mohamed & 178 others (Interested Parties) [2019] eKLR. In the abovementioned case the court asked itself what rights or interest did a party retain after compulsory acquisition of their parcel of land and the court held a party did court stated as follows:-
83.The Learned Counsel opined that there was no interest capable of transmission to the petition through succession and the order issued in Mombasa Kadhi’s Court Succession No 174 of 2018 was null and void ab initio. Government having taken possession of the suit parcel of land on 10th September, 1979 the Petitioner had 12 years to bring any action for recovery of land pursuant to the provision of Section 7 of the Limitation of Actions Act but failed to do so. The provision of Section 7 provides as follows;-
84.The Learned Counsel submitted that when read together with the provision of Section 9 of the Limitation of Actions Act it is clear that the cause of action is barred by Limitation and ought to be dismissed with costs.
85.On the issue of the registered owner’s right to be heard, the Learned Counsel’s argument was that the parcels of land compulsorily acquired consolidated with others into one parcel of land known as Mombasa/ Mainland South /Block 2/ 263 and a Certificate of Lease issued in favour of The Cabinet Secretary to The National Treasury as Trustee for the Department of Defence (Document No. 14 and 15 on the List of Documents dated 3rd June,2022). Survey maps had been provided showing the actual location of each plot acquired in relation to the land covered by the and the area covered by Land parcel No Mombasa/ Mainland South/Block 2/263. Noting that land parcel Mombasa/ Mainland South/Block 2/ 263 registered in favour of the Cabinet Secretary to The National Treasury by law the Cabinet secretary had a right to be heard before any adverse orders are made in line with the provision of Section 4(3) of the Fair Administrative Actions Act which provides as follows:-
86.He contended that the grant of any orders sought without Notice to and participation of the Cabinet Secretary National Treasury in the suit will greatly prejudice his right to property and right to be heard. The orders sought should not therefore issue. Further, the Learned Counsel held that noting that an award of a sum of Kenya Shillings Fourty One Thousand Eighty Nine Shillings and Fifty Cents (Kshs. 41,089/25) was made in respect of LR No.227/IV/Mainland South and a sum of Kenya Shillings Sixty Three Thousand Nine Ninety Seven Hundred Fifty Cents (Kshs. 63,997/50) for LR No.229/IV/ Mainland South the Petitioner was entitled to the amount which was already deposited in High Court plus interest as provided for by under the provision of Section 16 of the Land Acquisition Act, 1968 (repealed) which provided as follows:-
87.The Learned Counsel concluded by stating that the claim against the 1st, 2nd, 4th and 5th Respondents by the Petitioner should be dismissed with costs.
VII. Issues for Determination
88.I have carefully considered all the filed pleadings pertaining to the Petition dated 23rd February, 2022, the Supporting and Replying Affidavits by both the Petitioners and the Respondents, the oral evidence testified by all the witnesses in court during the hearing of the full trial, the articulate written submissions, the cited authorities provisions of Constitution of Kenya and the Provisions of the law.
89.In order to arrive at an informed, just, fair and equitable decision the Honorable Court has crafted the following six (6) salient issues for its determination. These are:-a.Whether the Petition dated 23rd February, 2022 by the Petitioner meets the fundamental threshold of a constitutional set up.b.Whether this Honorable Court has Jurisdiction to deal with this matter?c.Whether the acquisition of the suit land by the Government lawfully undertaken for compulsory acquisition or any other purpose whatsoever as provided for by law? IF YES, was the lawful procedure the said compulsory acquisition or the said purpose adhered with or not?d.Whether there are any available remedies to the an individual where the acquisition of the title is found to have been undertaken unlawfully.e.Whether the Petitioner is entitled to reliefs sought from the Petitionf.Who will bear the costs of the Petition?
VIII. Analysis and Determination
ISSUE No. a). Whether the Petition dated 23rd February, 2022 by the Petitioner meets the fundamental threshold of a constitutional set up.
90.The Constitutional basis of the Petition are well founded under Paragraphs 24 to 37 of the Petition they include:-a.Article 2 of the Constitution is the Supreme Law of the Republic and binds all persons and all state organs at both levels of Government.b.Article 3 of the Constitution provides that every person has an obligation to respect, uphold and defend the Constitution.c.Article 10 of the Constitution provides that the national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons. The national values and principles of governance include inter alia patriotism, national unity, sharing and devolution of power, the rule of law. democracy and participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized; good governance, integrity, transparency and accountability; and sustainable development.d.Article 19(1) &(2) asserts that (1) The Bill of Rights is an integral part of Kenya's democratic state and is the framework for social, economic and cultural policies. (2) The purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of the potential of all human beings.e.Article 20(1)&(2) state: (1) The Bill of Rights applies to all law and binds all State organs and all persons. (2) Every person shall enjoy the rights and fundamental freedoms in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom.f.Article 21(1) provides that it is a fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.g.Article 22(1) provides inter alia that every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.h.Article 23(1) provides that the High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial. violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. Clause 3 thereto states inter alia that in any proceedings brought under Article 22,a court may grant appropriate relief, including--(a) a declaration of rights: (b) an injunction; (c) a conservatory order; (d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24; (e) an order for compensation; and (f) an order of judicial review.i.Article 162 of the Constitution establishes the three tiers of Kenya’s Superior Courts. It provides thus:j.Under Article 258(1),the Constitution guarantees that every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.k.Under Article 259 (1) it is provided that: “the Constitution shall be interpreted in a manner that-- (a) promotes its purposes, values and principles; advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights: permits the development of the law; and contributes to good governance.l.Article 40(1),(2),(3), and (4) of the Constitution provides that:m.Further Article 47 of the Constitution states as follows:
91.As a matter of course, the Constitution of Kenya under Article259 (1) provides a guide on how it should be interpreted as such:-
92.This Court must give a liberal interpretation and consideration to any provision of the Constitution and have regard to the language and wording of the Constitution and where there is no ambiguity attempt to depart from the straight texts of the Constitution must be avoided.
93.Further, it is important to fathom that the Constitution is “a living tissue and instrument having a soul and consciousness of its own” . Like all other tissues, it has to be fed and watered. It breathes. Without oxygen and freshness it will die. I have learnt that these things are not mere metaphorical expressions. They are real. It must always be interpreted and considered as a whole with all the provisions sustaining and coordinating each other and not destroying the other.
94.Based on the principles set out in the edit of The Court of appeal case of the “Mumo Matemu – Versus – Trusted Society of Human Rights Alliance & Another (2013) eKLR provided the standards of proof in the Constitutional Petitions as founded in the case of “Anarita Karimi Njeru –Versus - Republic [1980] eKLR 154 where the court is satisfied that the Petitioner’s claim were well pleaded and articulated with absolute particularity. It held:-Further, in the “Thorp – Versus – Holdsworth (1886) 3 Ch. D 637 at 639, Jesse, MR” said in the year 1876 and which hold true today:
95.In application of these set out principles for filing a Constitutional Petition to this case, the Honourable court is fully satisfied that the Petitioner herein has dutifully complied and fully met the threshold of reasonable precision in pleadings for instituting this Petition against the 1st, 2nd, 3rd, 4th and 5th Respondents herein and pleading for the prayers sought.
ISSUE No. b). Whether the Court has Jurisdiction to deal with this matter?
96.Under this Sub heading, although this matter was never contested but the Court feels imperative it deliberates on it. The provisions of Article 162 of the Constitution of Kenya, 2010 establishes the three tiers of Kenya’s Superior Courts. It provides thus:
97.As stated here, therefore the Environment & Land Court (hereinafter referred to as “The ELC”) is Constitutional creature under Article 16 ( 2) ( b) of the Constitution of Kenya, 2010. Pursuant to that, there was enacted the Environment & Land Court Act, No. 19 of 2011 (Hereinafter refered to as The Act”) that governed the operation and functionalities of the ELC. The provision of Section 13 of the Act outlines the jurisdiction of the ELC as follows:
98.Further to these, the provisions of Sections 101 of the Land Registration Act, No. 3 of 2012, Section 150 of the Land Act, No. 6 of 2012 and Articles 159 ( 1 ) and (2) of the Constitution of Kenya, 2010 donates adequate legal mandate to the ELC to be in statutory position to deal and handle this Petition filed by the Petitioner herein.
ISSUE No. c). Whether the acquisition of the suit land by the Government lawfully undertaken for compulsory acquisition or any other purpose whatsoever as provided for by law? IF YES, was the lawful procedure the said compulsory acquisition or the said purpose adhered with or not.
99.Under this sub heading, it is imperative to extrapolate indepth the current law or statutory framework governing compulsory acquisition of interest in land is founded under Part VIII, Sections 107 to 133 of the Land Act No. 6 of 2012 and Article 40 (1), (2) and (3) of the Constitution of Kenya (See Viranda Ramji Gudka & 3 Others – Versus - The AG (2014)eKLR as read together with Part V of The Land Regulations of 2017.
100.Under the provision of Article 40 (1), (2), (3), and (4) of the Constitution provides that:
101.Further Article 47 of the Constitution states as follows:(1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.(3)Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall-(a)Provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and(b)Promote efficient administration.’
102.The Land Acquisition Act (now repealed), which was operative as at the publication of the Gazette for acquisition via Gazette Notice Nos. 3075 of 28th October,1977 and GN 3209 of 10th October, 1978, stated at Sections 3 and 4 thereof that;
103.The repealed the Land Acquisition Act, and the provisions under its Part VIII. Under the provisions of Sections 107 to 119 of the Land Act, 2012, makes provisions for compulsory acquisition of land for public use. The provisions of Section 107 of the Act holds that, the NLC ordinarily prompted by the request of the National or County Government through the Cabinet Secretary or County Executive member respectively for authentication of the compulsory acquisition of land are required to submit the request to NLC providing a reason for the land acquisition which must not be remote or fanciful.Strictly, the Land must be acquired for public purpose or in public interest and not any other purpose as dictated by Article 40 (3) of the Constitution of Kenya. In this case the threshold must be met.
104.If the Land gets acquired, then the compensation which is just, adequate, full and prompt is to follow to the persons affected by the project or have interest on the land under the provision of Section 111 of the Act. Upon the conclusion of the inquiry, the NLC makes compensatory awards to every person whom it has determined to be interested in the land after serving such person with a notice of award and offer of compensation. (See. Sections 113 & 114). Adequate and conclusive compensation can also be in form of land if available, whose value is not exceed that amount of money the NLC considers should have been awarded (See. See Section 142 (2). Once the award is accepted, it must be promptly paid by the NLC, after which the process of compulsory acquisition of land is completed by the taking possession of the Land in question being taken by the NLC. The property is 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.
105.In the case of: “Patrick Musimba – Versus - National Land Commission & 4 others [2016] eKLR, the Learned Judges held that:
106.From this decision, the word “Compensation” was viewed as carrying a corollary that the loss to the seller must be completely made up to him on the ground that unless he receives a price that fully equaled his pecuniary detriment the compensation would not see equivalent to the compulsory sacrifice. Just compensation is therefore mandatory. It should be prompt and in full, and should use principles of equivalence but must also protect coffers from improvidence. Therefore, from the above detailed statutory analogy, its clear that the compulsory acquisition of Land by the state for public use is ordinarily a creature of statute. While this is the case, I hold that the citizens should not be deprived, disowned and/or dispossessed of their land by the state or any public authority whatsoever against their wish unless expressly authorized by law and public interest also decisively demands so. The citizens have to be protected from wanton and unnecessary deprivation of their private property. There is no doubt to the fact that deprivation of a person’s private property against their will is an invasion of their proprietary rights. There is no contention that while the state is indeed entitled to compulsory acquisition rights of land for public use these fundamental rights must be keen and exercised with circumspect to be checked lest it is being done merely as an abuse and sheer whimsical gimmick to deprive the citizen their private rights. It’s a extremely delicate balance to be weighed with utmost case.
107.Additionally, in the case of: “Patrick Musimbi (Supra) held inter alia:-
108.Having elaborately laid - down the legal principles herein on the doctrine and concept of compulsory acquisition of land for public use, the Honorable Court now wishes to apply them to the instant case. In so doing the Honorable Court will be making extensive great efforts to directly relate the legal ingredients to the surrounding facts and inferences of this case.
109.Firstly, it will commence on the ownership of the suit property. It is clear that the suit property was registered in the names of the Petitioner's late mother one Dayambai Bhaijee who died on the 03rd January, 1973 as shown in the Certificate of Death. Thereafter, the Petitioner filed succession proceedings with the Kadhi’s Court in Mombasa Succession Cause No.174 of 2018. From a cursory look of the court file and the evidence presented by the Parties, it is evident the legal rights on the suit property vest on the Petitioner who is the only surviving son of the deceased. On 16th October, 2020, the Court issued the following orders:-Taking that this order have never been vacated, there is no doubt that the Petitioner is the proprietor of titles of land known as Land Referenced Numbers CR 400 PLOT NO.77/IV/MS measuring 2.0 acres and CR 2117/PLOT NO.81/IV/MS measuring 6.2 acres all totaling 8.2 acres. Indeed, it has been noted that the Certificate of postal search of 20th November 2018 and the one dated 11th January 2022, the Petitioner was and/or is still the proprietor of the Plots known as Title Numbers 81/IV/MS (6.2 acres) and 77/IV/MS (2.0 acres) respectively but the Kenya Defence Forces occupies that piece of land. The Petitioner by his letter dated 22nd October 2020, from his then advocate demanded from the 1st Respondent compensation for compulsory acquisition of the suit parcels. The Petitioner had in his possession the titles to the suit properties. Furthermore, the Certificates of official searches still revealed that the Petitioner was the duly registered owners of the suit properties.
110.Secondly, on the issue of whether the process of acquisition was legal or unlawful. Reiterating the principle on compulsory acquisition, I am persuaded by the legal ratio in the case of:- “Attorney General – Versus - Zinj Limited (Petition 1 of 2020) [2021] KESC 23 (KLR) (Civ)(3 December 2021) the Court held that:From the facts herein, it was abundantly clear that the suit properties were earmarked for compulsory acquisition by the Government of Kenya for purposes of use by the Department of Defence. They had been and still occupying the land todate. It was fenced off and marked as a “no - entry” zone. Fundamentally, the main issue to ponder here was whether proper notice was issued to the land owner notifying her of the purpose for the compulsory acquisition. All the Respondents but in particular, the 2nd Respondent has vehemently affirmed vide its letter dated 2nd February, 2021 – marked as Exhibit no. NNM - 7 and NNM - 9 on Page 59 of the Petitioner’s bundle that indeed holds that “the whole process of acquisition was followed”.This is an issue the Petitioner strongly denies. He holds it was acquired illegally, unlawfully and wrongfully. Indeed, there is nowhere the Honorable Court had been told that any such procedures for the acquisition were ever followed by the 3rd Respondent’s predecessor, the Commissioner of Lands and the 1st Respondent. Additionally, the Petitioner asserted that it was only in the year 2018 that to his utter surprise, that he established the said suit properties had been illegally compulsorily acquired by the Government of Kenya for the purposes of use by the Department of Defence Kenya Navy as Mtongwe Rifle Range and Naval Dockyard Extension, Mombasa. To this end, the Honorable Court tends to concur with the Petitioner and in particular where under the contents of Paragraphs 3, 4 and 5 of the Answer to Petition by the 1st, 2nd , 4th and 5th Respondents, it directly allude and implies to the fact that Government forcefully acquired the Petitioner’s land. It states as follows:At paragraph 4,the Respondents states:At paragraph 5, the Respondents states.
111.To begin with, from the facts and the evidence adduced by the Respondents, this Honorable Court holds that it was shown any prove of any notices served. Accordingly and without belaboring the point, provisions of the Land Acquisition Act (now repealed), which was operative as at the publication of the Gazette for acquisition via Gazette Notice Nos. 3075 of 28th October, 1977 and GN 3209 of 10th October,1978, stated at Sections 3 and 4 thereof that:-The subsequent sections read:-Under the provision of Section 20 of the Land Acquisition Act provided that:-1.Where the documents evidencing title to the land acquired have not been previously delivered to him, the Commissioner shall, in writing, require the person having possession of the documents of title to deliver them to the Registrar, and thereupon that person shall forthwith deliver the documents to the Registrar.2.On receipt of the documents of title, the Registrar shall:-(a)cancel the title documents if the whole of the land comprised in the documents has been acquired;(b)if only part of the land comprised in the documents has been acquired, the Registrar shall register the resultant parcels and cause to be issued, to the parties, title documents in respect of the resultant parcels.3.If the documents are not forthcoming, the Registrar will cause an entry to be made in the register recording the acquisition of the land under this Act.
112.If at all the said notices were issued, to whom were the notices contemplated under Section 6 of the Land Acquisition Act (Repealed) given. Indeed, on keen assessment of the properties referred in the gazette notices for the publication of the Gazette for acquisition via Gazette Notice Nos. 3075 of 28th October, 1977 and GN 3209 of 10th October,1978 respectively produced by the Respondents never disclosed the names of the proprietors. Critically, the said properties never belonged to the late Petitioner's mother who was then the registered proprietor. Furthermore, he had no claim over the said properties appearing in the said notices. The Honorable Court found the said notices to be illegal in the sense that they could not be attributed to refer to the Petitioner’s suit properties that were purportedly partitioned as a result of the said notices and thus earmarked them for compulsory acquisition. Any purported partition of the Petitioner’s land based on illegal notices riddled with wrong property titles was invalid. In case, by the time – years 1977 and 1978 - when the Respondent claims to have issued or served the said notices, the Honorable Court has taken judicial notice that the Petitioner’s mother had already long died in the year 1973. Thence, it could not have been possible that she would have received the said notice. Therefore, in my view, no notices were received. As stated in the case of:- “Mathatani Limited’s case (Supra) the Court held that:-
113.In conclusion on this aspect, therefore, since there were no notices made to the Petitioner nor his late mother the whole process was flawed.
114.Thirdly, the other issue to deliberate on was upon receiving notice was there any inquiry conducted as envisaged by law. The Honorable Court holds that the 2nd Respondent’s award of 1.460 acres from Plot No. 81/IV/MS that partitioned into Plot No. 228 (Orig.81/1/MS) and 226(Orig. 77/1/MS) on 1st June, 1960 was irregular and unlawful. I say so since there was no inquiry made and intention to acquire land was issued to warrant the alleged compensation amount that was never made at all. It was after several years [five (5)] following the death of the Petitioner’s mother, that the Government of Kenya was at it again for the remaining portions of Plot No. 81/IV/MS that purportedly were of resultant partitions into Plot No. 227 (Orig. 77/2/MS) and 229 (Orig. 81/2/MS) were earmarked for compulsory acquisition by the Government of Kenya for purposes of use by the Department of Defence vide gazette notices No. 3075 of 28th October,1977 and GN 3209 of 10th October, 1978, which was done by the Kenya Navy who continues to be occupying the land and have fenced it off.
115.Fifthly, on whether there was compensation upon the compulsory land acquisition. As a matter of principle, the Petitioner had a right to be compensated, fully for any compulsory acquisition by the Respondents by the most recent valuation of the property to be assessed. While dealing with compensation for compulsory acquisition of land, the court in the case of “Patrick Musimba – Versus - National Land Commission & 4 Others [2016] eKLR it has been appreciated that Petitioner whose land was compulsorily acquired ought to be compensated in full due to the acquisition of his proprietary interest. In support of this, they relied on the case of “Raticliffe – Versus - Evans (1892) QB 524 with regard to damages, the Court stated that:-Further, in the case of: “Commissioner of Lands & Another – Versus - Coastal Aquaculture Limited Civil Appeal No. 252 of 1996 KLR (E&L 264) the Court of Appeal held that in cases of compulsory acquisition the government is required to strictly adhere to the provisions of the Constitution and the Land Acquisition Act (now repealed). Better still, in the case of:- “Arnacherry Limited – Versus - Attorney General (2014) eKLR the Court held that:-
116.Legally speaking, once land has been acquired compulsorily, what follows is just, prompt, full and adequate compensation is to be paid to persons whose interests in land had been determined. In this case the Petitioner. This was 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. On the contrary, the Petitioner has held that there was no compensation made. And if at all there was any, he has questioned to whom was the said compensation paid to since the Petitioner's mother had long died in the year 1973. The 2nd Respondent has emphatically submitted that the award of compensation dated 15th May, 1979 was made to the Petitioner and through the High Court under the provision of Section 20 of the Land Acquisition Act. Despite of this assertion, the Honorable Court has not been shown any empirical proof tto the effect that the estate of the Petitioner’s late mother were ever compensated as claimed. In any case this was more than six (6) years after the death of the then registered owner could be regarded as compensation contemplated by Article 40 (3) (b) of the Constitution and the provision of Section 8 of the Land Acquisition Act. By all standards, this would not constitute prompt time. Clearly, it must have been an afterthought.
117.The provision of Article 259(1) of the Constitution of Kenya,2010 provides that the Constitution shall be interpreted in a manner that-(a) promotes its purposes, values and principles; advocates the rule of law, and the human rights and fundamental freedoms in the Bill of Rights: permits the development of the law; and contributes to good governance. Certainly, this would not be proper compensation in the real terms of the word. The repealed Land Acquisition Act called for prompt payment of compensation which has been emphasized by the Land Act, 2012. Furthermore, the Respondents never proved before this Honorable Court who received the compensation if at all the registered proprietor was already deceased on the date of payment of the compensation. In support of the above proposition, the Court has relied in the case of: Mathatani Limited’s (supra) where the Court held and adopted the Court of Appeal decision in case of “Commissioner of Lands & Another – Versus - Coastal Aquaculture Limited C.A.252/96:-
118.Thus, the partition of Plot No. 227/IV/Mainland North and 229/IV/Mainland North that did not belong to the Petitioner was valid, he submitted that as elucidated above, to date the Petitioner had not been compensated over the compulsory acquisition of the suit properties that had been illegally compulsorily acquired by the Government of Kenya for the purposes of use by the Department of Defence Kenya Navy as Mtongwe Rifle Range and Naval Dockyard Extension, Mombasa.
119.Sixthly, the Honorable found it rather difficult to appreciate nor fathom how todate the Petitioner continued to be holding the two (2) original Certificates of ownership. Ideally, upon the compulsory acquisition, these documents ought to have been surrendered for the fresh registration to the newly acquired owner. As stated, on the contrary, the property still registered in the Petitioner's name.
120.Finally, as was held in case “Ravaspaul Kyalo Mutisya – Versus -National Land Commission eKLR, I discern that any interests accruing due to the delay in payment of compensation and denial of enjoyment of proprietary interests should be paid at the instance of institution of the suit as both are joined at the hip. Whether the Petitioner was entitled to general, exemplary and aggravated damages under Article 23(3) of the Constitution of Kenya, 2010 for the unconstitutional conduct of the Respondents submitted that damages is the primary remedy for breach of a contract. The major objective of awarding damages for being deprived of use to his land that the Government has deprived of use for sixty two (62) years for the first alleged partition and forty three (43) years for the alleged remainder partitions of the year 1978 and 1979 respectively. In support of the above proposition they relied on the case of “Katra Jama Issa – Versus - Attorney General & 3 Others [2018] eKLR where the learned Judge adopted the English decision in the case of “Rookes – Versus - Barnard (1964) 1 All ER 367,where the Court held that:
121.It is my view that the act of 1st Respondent compulsory acquiring the Petitioner’s land by force being the Kenya Navy and not compensating the owner was one that qualifies for general and exemplary damages which they urged the court to award. The Petitioner had proved that his property was compulsorily acquired by the Respondents and no just compensation was paid. It was due to the notorious occupation of the suit property that the Petitioner had been denied his right to enjoy his property and thus should be compensated and all interests accruing thereof paid. I agree and also wonder if at all the 2nd Respondent stated as confirmed by the 1st Respondent that they were only interested on portions of the said suit properties, why then did they occupy the entire parcel of land?
122.For these reasons, therefore, I strongly discern and may not be dissuaded otherwise, that the military forcefully occupied the suit properties. They wrongfully, illegally and unlawfully acquired the same and without any compensation to the detriment of the Petitioner’s rights under the Land Act, 2012 and the Constitution of Kenya had been trampled upon by the State. There is no doubt that the whole process of the ostensible compulsory acquisition of the Petitioner’s land was completely flawed.
ISSUE No. (c). Whether there are any available remedies to the an individual where the acquisition of the title is found to have been undertaken unlawfully.
123.Under this sub – heading, I would once again emphasize that a finding of “unlawful acquisition” referred to in Article 40(6) of the Constitution must be through a legally established process and not by forceful occupation of property by State institutions or by preventing a person from enjoying the incidences of ownership of the property. Whether the Petitioner’s fundamental rights and freedoms as enshrined under Article 40 (1), 40(2)(a), 40(3)(b)(i), 47(1) and 47(2) of the Constitution of Kenya, 2010, had been contravened and infringed upon by the Respondents, indeed the provision of Article 40 of the Constitution of Kenya, 2010 provides that every person has the right to acquire and own property and that the State shall not deprive a person of property of any description. The compulsory acquisition of the Petitioner’s land without any just compensation had denied him the chance to enjoy his property and derive any benefit from it. This was a direct violation of his right to property enshrined under the Constitution. The 1st, 2nd, 3rd, 4th and 5th Respondents had gone further to deny the Petitioner his right to fair administrative action provided under Article 47. It stated that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. The act of denying the Petitioner his right to enjoy his land and prompt compensation forty-five years later, defeats the spirit of the Constitution which calls for expeditious and efficient dealing of matters. This is a gross violation of the Petitioner’s constitutional rights.
124.Thus, it was held in the case of “Adan Abdirahani Hassan and 2 Others – Versus - The Registrar of Titles and Others Nairobi Petition No. 7 of 2012 [2013]eKLR that,
125.In view of what I have stated, it is clear that even where property is said to be illegally acquired; it cannot be dispossessed without due process. Such dispossession cannot be effected by preventing the petitioner from enjoying the incidents of ownership of the land. Since the issue in this case concerns due process, I have exercised circumspection in commenting on the veracity or otherwise of the claims of illegal acquisition because, the State has the right to assert this position in the proper forum.
ISSUE No. d). Whether the Petitioner is entitled to reliefs sought from the Petition.
126.As regards relief, under Article 23 of the Constitution the court may grant appropriate relief to indicate the right so infringed. As I have stated, this case is about due process rights and I shall therefore grant orders necessary to secure these rights. The petitioner is entitled to a nominal award and costs of the suit to vindicate its rights.
ISSUE No. e). Who will bear the Costs of the Petition.
127.The Black Law Dictionary defines “Cost” to means, “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”.Rule 26(1) and (2) of the Constitution of Kenya (Protection of Rights and fundamental Freedoms practice and Procedure Rules 2013) provides :-
128.In the “Reference No. 1 of 2014, Council of Governors versus the Senate & another [2014] eKLR the Supreme Court further discussed discretion and the obligation upon the party praying for costs as under: -
129.In the case of “Reids Heweet & Company – Versus – Joseph AIR 1918 cal. 717 & Myres – Versus – Defries (1880) 5 Ex. D. 180, the House of the Lords noted:-
130.From this provision of the law, it means the whole circumstances and the results of the case where a party has won the case. Taking into account the circumstances of the Petition and having found that the Petitioners’ Constitutional rights were infringed, it is now under duty to consider the appropriate relief for them. I find it fair and just to exercise my discretion and grant costs to the Petitioner. For that very fundamental reason, therefore, the costs of this suit will be made to the Petitioner.
VI. Conclusion & Disposition.
131.Ultimately, having intensively and thoroughly deliberated on all the framed issues herein, this Honorable Court arrives at the finding that the Petitioners have succeeded in presenting its case and all the prayers sought from their filed Petition. For avoidance of doubt, specifically, these are the orders of the Court.a.That Judgement be and is hereby entered in favour of the Petitioner in terms and reliefs sought from the filed Constitution Petition dated 23rd February, 2022.b.That a declaration that compulsory acquisition of 8.2 Acres of the Petitioner’s land by the 1st Respondent without adhering to the strict and mandatory provisions of the Land Acquisition (now repealed) violated the Petitioner’s constitutional rights guaranteed under the provision of Article 40 (3) (a) & (b) of the Constitution of Kenya, 2010 not to be arbitrarily deprived of his property by the Government.c.That a Declaration that the purported gazettement for acquisition via gazette notice numbers 3075 of 28th October 1977 and GN 3209 of 10th October 1978, gazetted as Plot No. 227/IV/Mainland North and 229/IV/Mainland North respectively purporting to be Petitioners, did not take place and if at all it did, it was null and void ab initio for want of due process.d.That a Declaration that any document of title that may have emerged from the said gazettement for acquisition via gazette notice numbers 3075 of 28th October, 1977 and GN 3209 of 10th October, 1978, gazetted as Plot No. 227/IV/Mainland North and 229/IV/Mainland North respectively are null and void ab initio.e.That a Declaration that the 3rd Respondents unilateral award of compensation dated 15th May 1979 more than six (6) years after the death of the then registered owner cannot be regarded as compensation contemplated by Article 40(3)(b) of the Constitution and Section 8 of the Land Acquisition Act.f.That a Declaration that the Petitioner’s fundamental rights and freedoms as enshrined under Articles 40 (1), 40(2)(a),40(3) (b) (i) 47, (1) and 47(2) of the Constitution of Kenya 2010, have been contravened and infringed upon by the Respondents herein.g.That a Declaration that the Petitioner’s proprietary interests over Titles Of Land Reference Numbers Cr 400 Plot No.77/iv/ms (2.0 Acres) & Cr 2117/ Plot No. 81/iv/ms (6.2 Acres), Mtongwe Area, Mombasa County, was compulsorily acquired by the State.h.That the Petitioner is entitled to the following: -i.A sum of Kenya Shillings Seven Hundred Fifty Million (Kshs. 750,000,000/-) being the current market value of the suit land.ii.A sum of Kenya Shillings Thirty-Seven Million Five Hundred Thousand (Kshs. 37,500,000/-) as general (exemplary/punitive) damages being 5% of the quantified damages.iii.A sum of Kenya Shillings Three Hundred and Fifty Million (Kshs. 350, 000, 000.00) for loss and suffering on the unconstitutional and unlawful cancellation of the title documents transfer to the Government and subsequent actions.i.That upon payments as stated herein, the Petitioner be and is hereby directed to immediately surrender all the original Certificate (s) of Title deed (s) for the suit parcels in his possession to the Government through the office of the Honorable Attorney General for proper registration into the appropriate Government agencies in occupation of it. They should ensure that this surrender is reflected from the Registers.j.That the 1st, 2nd, 3rd, 4th and 5th Respondents herein jointly and severally to pay the Petitioner the costs of suit plus interest on (h) above at the court rate of 14% per annum from the date of this Judgement until payment in full.
JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT MOMBASA THIS 10TH DAY OF MAY 2023……………………………………………………………….HON. MR. JUSTICE L. L. NAIKUNI (JUDGE),ENVIRONMENT & LAND COURTMOMBASAJudgement delivered in the presence of:-a. M/s. Yumna, the Court Assistant.b. Mr. Mugoye Advocate for the Petitionerc. No appearance for the 1st , 2nd, 3rd, 4th, and 5th Respondents.
