Compulsory Acquisition in Kenya: Tribunal Reaffirms the Constitutional Right to Due Process and Fair Compensation

Introduction

The power of the Government to compulsorily acquire private land is firmly recognised under Kenyan law. However, that power is not absolute. Article 40(3) of the Constitution permits compulsory acquisition only where the land is required for a public purpose or in the public interest, and only upon prompt payment of just compensation and in accordance with due process.

The statutory framework governing compulsory acquisition, principally contained in Part VIII of the Land Act, establishes a structured process designed to safeguard the constitutional rights of affected landowners. These safeguards include adequate notice, public inquiry, valuation, compensation, and an opportunity for interested parties to be heard.

A recent decision of the Environment and Land Court Tribunal in Abdul Waheed Sheikh & Another (As Trustees of Sheikh Fazal Ilahi Noordin Charitable Trust) v National Land Commission & 2 Others (Tribunal Case E054 of 2024) serves as an important reminder that failure to comply with these procedural requirements can expose the State to substantial financial liability and judicial intervention.

Background

The dispute arose from the compulsory acquisition of land for the Nairobi-Thika Road Project.

In July 2008, the then Commissioner of Lands published Gazette Notices indicating the Government's intention to acquire several parcels of land, including a portion of LR No. 209/193 (now Nairobi Block 3/763). Although an award of compensation was initially prepared and communicated, it was subsequently revoked after the Government asserted that the land constituted public land. Consequently, no compensation was paid to the registered proprietors.

The Trustees of the Sheikh Fazal Ilahi Noordin Charitable Trust challenged the acquisition, relying on title documents and previous High Court decisions confirming their ownership. They argued that they had:

• never been served with the requisite acquisition notices;
• been excluded from the valuation and inquiry process;
• received no compensation despite the acquisition of their land; and
• suffered additional encroachment beyond the gazetted acquisition area through the construction of a pedestrian footbridge and the dumping of construction debris.

Seventeen years after the acquisition process commenced, the dispute finally came before the Tribunal.

The Tribunal's Findings

After considering the evidence, the Tribunal found that the compulsory acquisition process had fundamentally failed to comply with both constitutional and statutory requirements.

Among its findings, the Tribunal held that:

• the claimants possessed valid proprietary interests in the land;
• the acquisition process violated the procedural safeguards governing compulsory acquisition;
• the claimants' constitutional rights under Articles 40(3) and 47(1) of the Constitution had been infringed; and
• the Government had unlawfully deprived the claimants of their property without lawful compensation.

The Tribunal consequently awarded:

• compensation based on the current market value of the acquired land;
• disturbance allowance;
• general and aggravated damages;
• interest on the sums awarded; and
• orders requiring the removal of the unlawfully constructed footbridge and deposited construction spoil from the remaining property.

The Legal Framework Governing Compulsory Acquisition

Although the Tribunal considered acquisition that had commenced under the now repealed Land Acquisition Act, the applicable legal principles remain substantially reflected under Part VIII of the Land Act.

Kenyan courts have consistently emphasised that compulsory acquisition is a strictly regulated statutory process. In Patrick Musimba v National Land Commission & 4 Others [2016] eKLR, the High Court outlined the essential procedural steps that must be followed before private property may lawfully be acquired.

These include:

• receipt of a formal acquisition request by the National Land Commission (NLC);
• publication of a Gazette Notice of intention to acquire;
• service of notices upon the Registrar and all persons with an identifiable interest in the land;
• verification of ownership and authentication of the land through survey;
• inspection of the property;
• conduct of a public inquiry to determine ownership interests and compensation;
• preparation of individual compensation awards;
• prompt payment of compensation (or payment into a special compensation account where compensation is disputed); and
• formal taking of possession by the NLC.

The courts have repeatedly held that these requirements are mandatory rather than procedural technicalities.

Key Takeaways from the Decision

1. Due Process Is Fundamental

The Tribunal reaffirmed that procedural safeguards such as service of notices, public inquiries and proper valuation are integral components of constitutional protection. Failure to involve affected landowners throughout the acquisition process may invalidate the acquisition and expose the State to significant financial liability.

2. Historical Acquisition Processes Remain Subject to Review

The decision underscores that the National Land Commission bears responsibility for addressing deficiencies in compulsory acquisition processes initiated by its predecessor institutions. Historical irregularities cannot simply be ignored where constitutional rights remain unremedied.

3. Constitutional Property Rights Override Technical Limitation Arguments

Where a claimant seeks enforcement of constitutional rights under Article 40, particularly where the deprivation of property or failure to compensate is continuing, statutory limitation periods may not automatically bar the claim.

4. Government Projects Must Remain Within Acquired Boundaries

The Tribunal also addressed encroachments extending beyond the gazetted acquisition area. Public infrastructure constructed outside the scope of lawful acquisition may constitute trespass and attract additional remedies, including mandatory restoration orders and damages.

5. Compensation Must Reflect Present-Day Value

The decision illustrates the courts' willingness to award compensation based on current market value where earlier valuation processes were procedurally defective or where compensation was unlawfully withheld for extended periods. The objective remains to place the affected proprietor, as far as possible, in the position they would have occupied had the acquisition been lawfully undertaken.

Practical Implications for Landowners and Public Authorities

This decision reinforces several important lessons for both acquiring authorities and private landowners.

Public bodies must ensure strict compliance with every stage of the compulsory acquisition process, as procedural shortcuts may ultimately prove significantly more costly than adherence to the statutory framework.

Conversely, landowners should not assume that historical acquisitions are beyond challenge. Where constitutional safeguards have been ignored, affected proprietors may still be entitled to seek appropriate relief, including compensation, damages and restoration orders.

Conclusion

The decision in Abdul Waheed Sheikh & Another (As Trustees of Sheikh Fazal Ilahi Noordin Charitable Trust) v National Land Commission & 2 Others reinforces a fundamental constitutional principle: while compulsory acquisition serves an important public function, it must always be exercised within the limits imposed by the Constitution and the Land Act.

The Government's power to acquire private property is therefore balanced by equally important obligations to observe due process, respect property rights, and provide prompt and just compensation. As this decision demonstrates, failure to comply with these obligations may result in substantial financial consequences and judicial intervention, even many years after the acquisition process began.

 

Disclaimer: This publication is intended for general informational purposes only and should not be construed as legal advice. Readers should seek specific legal advice before acting on any information contained in this article. No lawyer-client relationship is created by virtue of reading this publication.