THE REPUBLIC OF KENYAIN THE HIGH COURT OF KENYA AT MOMBASACIVIL SUIT No. 423 OF 1996NIAZ MOHAMED JAN MOHAMED........................... PLAINTIFF
VERSUS
- COMMISSIONER OF LANDS
- MUNICIPAL COUNCIL OF MOMBASA
- NANDLAL JIVRAJ SHAH
- VIMAL NANDLAL SHAH TIA JIVACO AGENCIES
- MEHUL N. SHAH................................................... DEFENDANTS
BEFORE: THE HON. JUDGE MR. P. N. WAKI
Civil Procedure: Whether the applicant has a prima facie case with a probability of
success
Whether compulsorily acquired land by government can be put to private
use government officials.
Local Governments Act, Cap 265. Land Acquisition Act
During the construction of the new Nyali Road Bridge in 1979, a new access road was
constructed which traversed Plot No. 32 belonging to the applicant. The land was compulsorily
acquired by government and the road was constructed. The applicant thereafter enjoyed the
frontage and direct access to the road until November 1995 when the Commissioner for lands
created a new leasehold title from a small portion which remained uncovered by the tarmac road
and allocated it to JIVACO Agencies. The applicant filed a suit and a chamber summons seeking
a temporary order that JIVACO is restrained from developing, or any way dealing in Plot
No.9665.Sec 1MN until the suit is determined on grounds that they interfered with his easement
rights of access.
HELD:
- there is no compulsory acquisition of land by the government for purposes other than
those provided in the constitution of Kenya under S. 75 - The land must be used subsequent to the acquisition for a lawful purpose for which it
was acquired which is construction of a public road. - The applicant was entitled to assume that the unutilised portion would remain a road
reserve and that he would continue to enjoy all the rights of a frontager to the road and
thus ought to be protected until this case is determined.
The application is granted with costs.