Town Council of Awendo v Nelson O Onyango 1st - 13th Respondents,

Attorney General 14th Respondent; Abdul Malik Mohamed & 178 others
(Petition 37 of 2014) [2019] KESC 38 (KLR) (Civ) (30 April 2019) (Judgment)
Town Council of Awendo v Nelson O Onyango & 13 others; Abdul
Malik Mohamed & 178 others (Interested Parties) [2019] eKLR
Neutral citation: [2019] KESC 38 (KLR)

REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA
CIVIL
PETITION 37 OF 2014
DK MARAGA, CJ, MK IBRAHIM, SC WANJALA, NS NDUNGU & I LENAOLA, SCJJ
APRIL 30, 2019

BETWEEN
TOWN COUNCIL OF AWENDO ........................................................ PETITIONER

AND
NELSON O ONYANGO & 13 OTHERS ..................................... 1ST RESPONDENT
ATTORNEY GENERAL ............................................................... 2ND RESPONDENT

AND
ABDUL MALIK MOHAMED & 178 OTHERS .................... INTERESTED PARTY

(Being an appeal from the entire Judgment and Order of the Court of Appeal
sitting at Kisumu (Onyango Otieno, Azangalala & Kantai, JJ.A) delivered
on the 18 day of October 2013 in Kisumu Civil Appeal No. 161 of 2010)

JUDGMENT

A. Introduction
(1) This is a Petition of Appeal dated 10th December, 2014 and led on 23rd December, 2015 pursuant to its
admittance by this Court as one involving a matter of general public importance under Articles 163(4)
(b) and 163 (5) of the Constitution. The Appellant is challenging the entire Judgment and Orders of
the Court of Appeal (Onyango Otieno, Azangalala & Kantai JJ.A) at Kisumu in Civil Appeal No.161
of 2010 delivered on the 18th day of October 2013. In certifying the Appeal as one involving a matter

kenyalaw.org/caselaw/cases/view/173045/ 1
 of general public importance, in Miscellaneous Application No. 49 of 2014; (Mutunga CJ &P, Tunoi,
Ibrahim, Ojwang, Njoki, SCJJ); this Court stated:

“ ……The issues of the intended appeal cut across the former and the current Constitutions
and law regimes. It is important to reconcile these two regimes, and the instant case
provides the occasion. The question whether the respondents in this case are entitled
to the revisionary interest in unutilized portions of land, invokes critical sub-themes
of jurisprudential signicance and which, in every respect touch on matters of public
interest.” [Emphasis added]

B. Background
(2) Sometime in 1976, in exercise of its powers of Eminent Domain, the Government of Kenya issued two
Gazette Notices informing the public of its intention to acquire privately owned parcels of land in the
then South Nyanza District. In doing so, the Government was acting pursuant to the provisions of
Section 75 of the retired Constitution and Section 6 (2) of the Land Acquisition Act of 1968 (Now
repealed). The rst was Gazette Notice No. 2996 of 1968 (Legal Notice No. 47 of 1968) dated 8th
October, 1976 (herein Gazette Notice 2996); which in its preamble read as follows:

“ The Land Acquisition Act 1968

(No. 47 of 1968)
Notice of Intetion to Acquire Land in Pursuance of Section 6(2) of the Land Acquisition
Act 1968, I hereby give notice that the Government intends to acquire the following land
for the South Nyanza Sugar Scheme in South Nyanza” [emphasis added].

(3) The second was Gazette Notice No. 3737 (Legal Notice no. 47 of 1968) dated 24th December, 1976,
(herein after Gazette Notice 3737); which in its preamble read as follows:

“ The Land Acquisition Act 1968

(No. 47 of 1968)
Notice of Intention to Acquire Land in Pursuance of Section 6(2) of the Land Acquisition
Act 1968. I hereby give Notice that the Government intends to acquire the following land
for the South Nyanza Sugar Scheme (Awendo Township Expansion) in South Nyanza
District”. [Emphasis added]

(4) The Government then proceeded to compulsorily acquire, various privately owned parcels of land.
Some of the acquired parcels had been owned by the 1st to 13th respondents in this Appeal. Thus far,
there was no legal dispute, until the year 2005, when the Respondents herein led suit in the High
Court at Kisumu, in Civil Case No. 133 of 2005; challenging the process of compulsory acquisition
of the suit land and the allocation of unutilized portions to third parties by the Appellant.

At the High Court

(5) At the High Court, the Plaintis (Respondents herein) sought determination of several issues, viz:

(i) Whether the Government of Kenya had compulsorily acquired the suit land;

(ii) Whether that acquisition was for the “sole purpose” of establishing the South Nyanza Sugar
Scheme;

kenyalaw.org/caselaw/cases/view/173045/ 2
 (iii) Whether the Government thereafter utilized the entire acquired portion of the suit land;

(iv) Whether some of the acquired Suit land was left unutilized, after being marked as unt for
“the purpose for which it was acquired”;

(v) Whether the original owners had reversionary rights over the “unutilized portions” of the suit
land;

(vi) Whether the Appellant in this case had any proprietary rights over the “unutilized portions”
of the suit land, and whether such proprietary rights had been acquired through gazettement
or if such interests (in any) were capable of being transferred to third parties; and

(vii) Whether there had been any improper dealings with the said “unutilized parcels of land” of
the suit land, by ocers of the Appellant.

(6) In a Judgment dated 13th November, 2009 the High Court (Musinga J, as he then was) held that the
sole purpose, of the compulsory acquisition of the suit land, was for the establishment of the Nuclear
Estate for South Nyanza Sugar Scheme, as had been indicated on the Gazette Notices and admitted
by the Appellant. That since the Government did not utilize the acquired suit land in its entirety,
the Appellant neither had proprietary interests over the suit land, nor the right to evict the 1st to 13th
respondents. That the unutilized parcels of the suit land which were unt for sugarcane farming, ought
to have reverted to the respondents, as the original or benecial owners thereof. The learned Judge then
ordered the Lands Registrar, to re-survey the land, and issue title deeds to the respondents, pursuant
to Section 75 of the retired Constitution.

(ii) At the Court of Appeal

(7) Aggrieved and dissatised with the entire Judgment of the High Court the Appellant Appealed to the
Court of Appeal, Civil Appeal No. 161 of 2010 on the following grounds:

(a) That the learned trial Judge erred in nding that the acquisition of the suit parcels of lands was
not meant for the benet of the Appellant contrary to the Gazette notices.

(b) That the learned trial Judge erred in nding in favor of the respondents without taking into
account the fact that the Government which acquired the said parcels was never made a party
to this suit.

(c) That the learned trial Judge erred in nding in favor of respondents in a claim that was statutory
time barred and therefore the court had no jurisdiction to entertain the claim.

(d) That the leaned trial judge erred in entertaining the suit brought by way of originating
summons when the issues involved are not suitable for determination by way of originating
summons.

(e) That the learned trial judge’s nding was against the weight of the evidence.

(8) In response, the Respondents opposed the Appeal on grounds that the Appellant had admitted, that
the suit land was acquired solely, for the establishment of the South Nyanza Sugar Scheme. Further, the
Respondents argued, that the Chief Land Registrar, in a letter dated 29th February, 1996 and produced
before the High Court, had directed that the residue land, be resurveyed and titles issued to the original
owners.

(9) The Attorney-General also opposed the appeal and argued that, the suit land was acquired for the sole
purpose of, establishing the South Nyanza Sugar Scheme and that nothing on the material Gazette

kenyalaw.org/caselaw/cases/view/173045/ 3
 notices showed that the suit land had been acquired for the benet of the Appellant. It was further
argued that there was nothing on record, to show that the residue suit land had been surrendered to
the Appellant by the President, as required by the Constitution.

10. In a Judgment dated 18th October, 2013 the Court of Appeal (Onyango Otieno, Azangalala and
Ole Kantai JJ.A) upheld the Judgment of the High Court and dismissed the appeal with costs.
Consequently, the Applicant sought certication to appeal to the Supreme Court against the Court
of Appeal judgment. The application for certication, having been declined by the Appellate Court,
was later granted by the Supreme Court, as detailed earlier in this Judgment.

(iii) At the Supreme Court

(11) The Appellant’s grounds of appeal are that the learned Judges of the Court of Appeal erred in fact, in
nding that, the suit was not acquired for purposes of the expansion of the Appellant; erred in law and
fact, by reasserting the 1st to 13th Respondents’ titles over the suit land, despite the said titles having
extinguished upon completion of the process of compulsory acquisition by the government; that the
impugned Judgment by the 1st Appellate Court had the eect of divesting the third party allottees
(Interested Parties herein) of their property, including schools, hospitals, churches and nancial
institutions, in breach of Articles 40, 48 and 50 (2) of the Constitution.

(a) The Appellant’s Case

(12) On the basis of its submissions and List of Authorities in support thereof, it is the Appellant’s case that
the Gazette Notices leave no doubt that the compulsory acquisition of the suit land, was for purposes
of establishment of the South Nyanza Sugar Company, as well as for expansion of Awendo Township,
which purpose the Appellant facilitated by allocating the unutilized suit land to the Interested Parties
for development. That upon compulsory acquisition and by virtue of Sections 19 (1) and (4) of the
Land Acquisition Act (now repealed), the 1st to 13 Respondents’ titles were extinguished in favor of
the Government of Kenya.

(13) It is also the Appellant’s case that the Judgment of the Court of Appeal violates third parties rights’ to
property under article 40 of the Constitution, fair hearing under article 50 of the Constitution, and
access to justice under article 48 of the Constitution as the allottees were never enjoined in the suits
both at the High Court and Court of Appeal.

(b) The 1st to 13th Respondents’ Case

(14) The 1st to 13th respondents in their submissions dated 9th May 2016, and further submissions of 30th
June 2017, argued that the purpose of acquisition of the suit land, was never in dispute before the trial
court, as both the Appellant and the Respondents were in agreement that the same was acquired for
the development of the South Nyanza Sugar Company Scheme. That the said position was rightfully
upheld by the High Court and the Court of Appeal in their respective Judgments. They submitted
that, the mere fact that the name of the Appellant appeared in brackets on Gazette Notice No 3737
only meant that South Nyanza Sugar Company Scheme was in the Appellant’s proximity and did not
mean that the Appellant was a beneciary of the acquisition.

(15) They urged that Section 19 of the Land Acquisition Act (now repealed) stipulates that upon the land
so acquired being vested in the Government, a Notice to that eect, must issue upon all registered
proprietors of the land. It was their contention that the said Notice, was not issued.

(16) In conclusion the 1st to 13 Respondents submitted that being the original owners of the land, they
enjoy pre-emptive rights by law to acquire the residue of the acquired land under Section 110 (2) of

kenyalaw.org/caselaw/cases/view/173045/ 4
 the land Act and the Constitution; that the government of Kenya through the Chief Land Registrar
through the letter dated 29th February, 1996 had directed that the residue land be resurveyed and the 1st
and 13th Respondents be issued with titles; that it would be unfair to displace them having lived on the
suit land for decades. They also objected to the arguments by the Appellants and the Interested Parties
that the impugned Judgment violated the cited provisions of the Constitution as being baseless and
without proof. That the same had not been argued before the High Court and the Court of Appeal
and are an attempt to divert the attention of this Court from the issue as it has been before the Courts
below.

(c) 14th Respondent’s Submissions

(17) The 14th Respondent (the Attorney General) submitted that the suit land was acquired for the
Appellant’s expansion and not otherwise. It was submitted that the Gazette Notices were clear and
un-ambiguous, and that notwithstanding, since there were two opposing interpretations, the best
approach would have been to invite the maker of the Notices, i.e., the Commissioner of Lands,
to clarify the purpose for the compulsory acquisition. He thus faulted the Court of Appeal’s
interpretation of the Notices and the entire Judgment.

(18) It was further submitted that the 1st to 13th respondents had failed to authoritatively adduce evidence,
that there was residue land after acquisition. It was argued that for compulsorily acquired land to revert
to the original owners, the same must no longer be required for the purpose for which it was acquired,
and this fact, must be communicated through a Gazette Notice by the Commissioner of Lands.

(19) The Attorney General also submitted that the 1st to 13th Respondents were not entitled to
unutilized suit land, if any, because they had been compensated. Furthermore, it was argued,
the suit land was strictly speaking, still being used for the purpose for which it had been
compulsorily acquired, hence the revisionary interests, could not be said to have crystallized.
The 14th respondent relied on the cases of Peter Ouma Omolo & Another versus Awendo
Town Council [2011] eKLR to support his argument.

20. Citing the decision in Robert Wamititahi and the Republic v. Francis Kirimi [2013] eKLR,
the 14th respondent submitted that the Court of Appeal, erred in law by nding that the
unutilized land should be resurveyed and titles issued to the 1st to 13th Respondents, without
giving the Government, as the benecial and registered owner, the Commissioner of Lands
as the administrator and manager of public land and the third party allottees, an opportunity
to be heard before the High Court and without a conrmation from South Nyanza Sugar
company regarding the status of the land claimed as residue.

(21) The 14th respondent contended that the Court of Appeal, should not have relied on oral
evidence by the Appellant’s Town Clerk, regarding the purpose of the acquisition, in total
disregard of the express provisions of Gazette Notice no 3737 of 24th December, 1976 which
set out that the acquired land was for expansion of Awendo Township. Further, argued the
said respondent, the Gazette Notice was a public document, within the meaning of section 79
(1) (a) of the Evidence Act and having established that the two Gazette Notices were distinct,
and clear as to the purpose of acquisition, the evidence by the Appellant’s Town Clerk to the
contrary should not have been admitted.

(22) In conclusion, the 14th respondent submitted that the Court of Appeal had failed to take into
consideration the overarching public interest controlling the compulsory acquisition. Such
public interest, the said respondent contended, should have taken precedence over the tenuous
claims of the 1st to 13th Respondents

kenyalaw.org/caselaw/cases/view/173045/ 5
(d) Interested Parties’ Case
(23) The Interested Parties submitted rst, that the provisions of both the retired and the 2010
Constitutions are applicable to this Appeal. In support of their contention, they relied on this Court’s
decision in Samuel Kamau Macharia & 2 Others v. Kenya Commercial Bank & 2 Others [2012] eKLR.

(24) Secondly, the Interested Parties argued that the Gazette Notices had clearly stated, that the purpose of
acquisition, was for the establishment of the South Nyanza Sugar Scheme, and expansion of Awendo
Township. That since not all the land acquired was used for development of the Sugar Scheme, the
residue was appropriated towards expansion of the Appellant, as the successor in title to Awendo
Township, through allocation of sections of the suit land to the Interested Parties. In furtherance of
that purpose, the Interested Parties had built schools, hospitals, churches, and nancial institutions.

(25) Thirdly, it was submitted that the Court of Appeal Judgment, violated the Interested Parties’ rights
to the legitimate expectation, of free enjoyment of the suit land. They argued that since the state had
exercised its powers to compulsorily acquire the suit land, and subsequently allocated the same to them,
they should be protected in law. To this end, they relied on the decisions in Diana Kethi Kilonzo &
Another v. The Independent Electoral & Boundaries Commission (IEBC) & 2 Others at paragraph
33 and Council of Civil Services Union and Others v. Ministers for the Civil Services (1985 AC 374
(408-409) as cited in Multiple Haulers East Africa Limited v. the Attorney- General & 10 Others [2013]
eKLR.

(26) In conclusion, they submitted that the Court of Appeal’s decision violated their rights as enshrined
under the Constitution more specically the right to fair trial under articles 50 and 48 as they were not
enjoined to the suit before the High Court or the Court of Appeal.

C. Analysis

(i) Issue for Determination

(27) Having carefully considered the grounds of appeal, the submissions of the parties, the authorities cited
in support thereof, and the pronouncement of this Court, admitting this appeal as one involving a
matter of general public importance, it is clear to us that only one issue falls for determination. We
hereby restate this single issue as being:

Whether a proprietor, whose land has been compulsorily acquired by the state, for a public
purpose, in accordance with the Constitution and the Law, retains a reversionary interest in,
or a pre-emptive right over any un-utilized portion of such land, should the public purpose
for which it was acquired become spent?

(ii) What was the purpose for which the Suit Land was acquired?
(28) From the Record of Appeal, it is not in doubt that the suit land, was compulsorily acquired by the
Government of Kenya, pursuant to the provisions of Section 75 of the retired Constitution, and
Section 6 (2) of the Land Acquisition Act 1968, (now repealed). It is also not in doubt that the
proprietors of the land, including the 1st to the 13th Respondents herein, were fully compensated in
accordance with the applicable law. The compulsory acquisition was actualized vide the two Gazette
Notices No. 2996 of 8th October, 1976 and No. 3737 of 24th December 1976. However, while it is clear
that the parcels of land were acquired for a public purpose, what remains in contention is the specic
nature of the purpose for which some of the parcels were acquired. [Emphasis Added].

kenyalaw.org/caselaw/cases/view/173045/ 6
(29) On the one hand, it is contended that the suit land was acquired for the sole purpose of establishing
the South Nyanza Sugar Scheme In South Nyanza District. The proponents of this contention are
the 1st to 13th Respondents. They base their argument on the opinion of the then State Counsel, Mr.
Maroro, who on behalf of the Attorney General had submitted at the Court of Appeal (see VOL A
Page 306, Para: 2), that the purpose of the acquisition was solely, for the establishment of the South
Nyanza Sugar Scheme, and no other. This Opinion had also been expressed by the then Town Clerk
of Awendo Town Council, Mr. Barnaba Kosgei, in his replying Adavit to the Originating Summons
in the High Court.

[30] On the other hand, the Appellant, the Interested Parties, and the Attorney General (in a departure from
his earlier position at the Court of Appeal) contend that the acquisition of the suit land was for the
twin purposes of establishing the South Nyanza Sugar Scheme and the Awendo Township Expansion.
They submit that Gazette Notice No. 2996 was issued to eect the establishment of the Scheme while
Gazette Notice No. 3737 was for the Township Expansion.

(31) Be that as it may, both purposes for which the various land parcels were acquired fall within the rubric
of “public purpose”, within the meaning of Section 75 (1) of the retired Constitution of which the
relevant provisions read as follows:

“ No property of any description shall be compulsorily taken possession of, and no interest in
or right over property of any description shall be compulsorily acquired, except where the
following conditions are satised:

(a) the taking of possession or acquisition is necessary in the interest of defence,

public safety, public order, public morality, public health, town and county
planning or the development or utilization of property so as to promote the
public benets; and

(b) the necessity thereof is such as to aord reasonable justication for the causing
of hardship that may result to any person having an interest or right over the
property; and

(c) provision is made by a law applicable to that taking of possession or acquisition

for the prompt payment of full compensation…”

(32) Section 6 of the Land Acquisition Act (now repealed) replicates the above provisions of the retired
Constitution. On the face of the two Gazette Notices therefore, we nd little diculty in concluding
that the Suit lands in question were acquired, on the one hand for town and county planning and on
the other hand, for the development of, or utilization of the said lands so as to promote the public
benet. This then immediately leads us to determine the lingering controversy, as to whether the parcels
of land in question were acquired solely for the establishment of the South Nyanza Sugar Scheme, or
in addition thereto, for the expansion of the Awendo Township.

(33) Having taken note of the divergent opinions advanced by the parties regarding this issue, we hold
that the proper basis for determining the specic nature of the purpose for which the suit lands were
acquired, is the language used in the two Gazette Notices. Towards this end, Gazette Notice No. 2996
states that the specied parcels of land are to be acquired for “ the South Nyanza Sugar Scheme” while
Gazette Notice No. 3737 states that the specied parcels are to be acquired for the South Nyanza Sugar
Scheme (Awendo Township Expansion) in South Nyanza District.

kenyalaw.org/caselaw/cases/view/173045/ 7
(34) We also note from the Record, that the two Gazette Notices do not refer to the same parcels of
land. On the contrary, the Notices are distinct and refer to dierent parcels of land. Thus Gazette
Notice No. 3737 refers to land title nos. North Sakwa/Kamasonga/204 (plot no. 204), North
Sakwa/Kamasonga/34 (plot no. 34), North Sakwa/Kamasonga/1081 (plot no. 1081), North Sakwa/
Kamasonga/1093 (plot no. 1093), North Sakwa/Kamasonga/1111 (plot no 1111), North Sakwa/
Kamasonga/1067 (plot no. 1067), North Sakwa/Kamasonga/207 (plot no. 207), North Sakwa/
Kamasonga/45 (plot no. 45), North Sakwa/Kamasonga/111 (plot no. 111), and North Sakwa/
Kamasonga/202 (plot no. 202) in respect of the 2nd, 3rd, 4th, 5th, 8th, 9th, 10th, 11th and 12th respondents
respectively (hereinafter the Suit Land).

(35) It is also noted from the Record (VOL. A pages 137 and 158) that land title no. North Sakwa/
Kamasonga/1193 (Plot No. 1193) in respect of the 7th Respondent was not on the list of parcels of
land acquired by the two Gazette Notices. The tentative conclusion regarding the said title therefore, is
that it was never compulsorily acquired. Besides, it is noted from the Record that land title No. North
Sakwa/ Kamasonga/ 46 (Plot No. 46 ) in respect of the 1st Respondent and Land Title No. North
Sakwa/ Kamasonga /168 (Plot No. 168) in respect of the 13th Respondent were acquired vide Gazette
Notice No. 2996.

(36) Finally, a perusal of the Record reveals the fact that some of the Respondents herein, to wit, the 3rd, 9th,
10th, 11th and 12th were not the original proprietors of the parcels in question. However, they refer to
themselves in their supporting adavits as benecial owners.

(37) Against this background, what meaning as to purpose ought to be attributed to the language in the
two Gazette Notices? A plain reading of Gazette Notice No. 2996 clearly indicates that the intention
of acquiring the land parcels listed therein was for establishing the South Nyanza Sugar Scheme. This
must be taken to refer to all that it entails to establish such a scheme, including the factory, sugar
plantations, oces, plant and machinery and all necessary infrastructure. Towards this end, there is no
dispute regarding the establishment of South Nyanza Sugar Scheme.

(38) As for Gazette Notice No. 3737, it is stated that the listed parcels therein are to be acquired for the South
Nyanza Sugar Scheme (Awendo township Expansion) in South Nyanza District. The operative words
are the bracketed ones i.e., “Awendo Township Expansion”. It was the Attorney General’s argument
that the two Gazette Notices referred to one and the same purpose; the establishment of the South
Nyanza Sugar Scheme. This was the same argument advanced by the 1st to 13th Respondents. Much
later in the appeal before the Supreme Court, the Attorney General would abandon this argument.
It was now his submission that a plain reading of the two Gazette Notices reveals that under Gazette
Notice No. 2996 the parcels listed therein were acquired for the South Nyanza Sugar Company while
Gazette Notice No. 3737 was for Awendo Township Expansion. He faulted the Court of Appeal for
treating the two acquisitions as if they were one and the same, when they were in fact, dierent.

(39) We are of the rm view that the two Gazette Notices, although linked in material particulars, could not
have been referring to the same purpose for the compulsory acquisition. The inclusion of the words
“Awendo Township Expansion” must be taken to mean that there was another purpose other than, but
related to, the actual establishment of the South Nyanza Sugar Scheme. This other purpose was the
expansion of the Awendo Township. Is it any wonder then that the two Gazette Notices did not refer
to the same parcels of land? The establishment of the South Nyanza Sugar Scheme within the vicinity
of Awendo Township meant that the latter, had to be expanded to accommodate the functionality of
the former. The need to expand the Township, necessitated the further acquisition of extra land, for
that purpose, as was clearly stated in the brackets. The words “Awendo Township Expansion” must
surely be taken to mean something, otherwise why were they included in Gazette Notice No. 3737?

kenyalaw.org/caselaw/cases/view/173045/ 8
 Why didn’t the latter Notice simply echo or replicate the words in Gazette Notice No. 2996? Is it
not logical, if not compulsive, to assume that the establishment of the Sugar Company would trigger
demands, upon the Township of a socio-economic, demographic and nancial nature, hence the need
for its expansion? For example, where were the experts, labourers, company executives, their spouses
and children to be accommodated for them to serve the Sugar Company? Where were they to seek
health, nancial, recreational, educational, and other social services? One could go on and on.

40. We also nd and hold that, the purpose for which all that land, comprised in Gazette Notice No. 2996,
i.e., the establishment of SOUTH NYANZA SUGAR SCHEME in South Nyanza, had been fully
accomplished by the time of ling Civil Case No. 133 of 2005 at the High Court. That being the case,
there were no “un-utilized portions” of land in the block to which the said Gazette Notice applied.

(iii) Reversionary Interest in or Pre-Emptive Rights over Compulsorily Acquired Land

(41) We now turn to the crux at the heart of this Appeal, and that is, whether a proprietor whose land has
been compulsorily acquired, nonetheless retains some reversionary interest in, or pre-emptive rights
over, the un-utilized portions thereof. At the outset, it is important to set out the legal elements of a
reversion in order to discharge the burden before us. Simply stated, a “reversion” is that interest in land
that survives the expiry or extinction of an estate in the said land. It is called a “reversion” because upon
the extinction of the estate, that interest reverts to the person or entity from whose superior title the
estate was originally created. An estate on the other hand, is a time bound bundle of rights over land, or
as they say at Common Law, “an estate is a time in the land or a land for a time”. Thus a holder of a fee
simple estate retains interest in that land for as a long as there will be an heir to inherit the same. Where
no heir remains to inherit the estate, then the land reverts to the state. The state holds a superior title to
the land called “the radical title”. The fee simple estate also becomes extinguished upon a compulsory
acquisition by the State in exercise of its powers of Eminent Domain. By the same token, in a landlord
and tenant relationship, the tenant holds the leasehold estate while the landlord retains the reversion
which, upon the expiry of the leasehold, is surrendered back to the landlord, since the latter holds a
superior title from which the lease was created.

(42) For purposes of argument in this Appeal, we shall treat the 1st to 13th Respondents as the original
owners of the suit land. (We say for purposes of argument, because some of the respondents were
not the original owners). They had acquired title to their various parcels of land most likely, through
registration pursuant to the necessary land adjudication processes. However, their titles to those parcels
of land became extinguished upon compulsory acquisition. Upon the compulsory acquisition, their
estates in the land (whether fee simple or absolute proprietorship) ceased to exist and became fused
with the States’ superior title. Their parcels of land now became public land, having been compulsorily
acquired for a public purpose in accordance with the Constitution and the law. The Respondents were
compensated for the loss of their land to the public interest.

(43) Given this scenario, what rights or interests if any, could the Respondents be said to have retained
following the compulsory acquisition of their parcels of land? As the law stood then, it is clear that the
Respondents did not retain any interests in the land, capable of protection or resuscitation by the law.
Section 19 (1) of the Land Acquisition Act (now repealed) provides that:

“ After the award has been made, the Commissioner shall take possession of the land by
serving on every person in the land notice that on a specied day which shall not be later
than sixty days after the award has been made, possession of the land and title the land will
vest in the Government.”

kenyalaw.org/caselaw/cases/view/173045/ 9
 And Sub-Section 4 of the said Section provides:

“ Upon taking possession, the land shall vest in the Government absolutely free from
encumbrances.”

(44) As we have stated, the Respondents did not have any reversion in the acquired lands, since whatever
reversion that had existed, could only have been a reversion in favour of the State, and not Vice Versa.
The suit lands all became vested in the Government of Kenya. But this legal position notwithstanding,
can it be said that the Respondents retained some kind of reversionary interest over the un-utilized
portions of the land, once the public purpose for which the land had been acquired became spent?
What was the un-utilized portion of the land in question?

(45) For purposes of this Appeal, we shall deem “un-utilized land” to refer to any residual portion of land
which has been compulsorily acquired, but which remains unused, after the realization of the public
purpose for which it had been acquired. Now coming to the case before us, it is the Respondents’
case that the land parcels appearing in Gazette Notice No. 3737, be deemed as un-utilized land. It is
their argument that the said parcels are to be so deemed, because the purpose of establishing the South
Nyanza Sugar Scheme, for which they had been acquired, was realized long ago. The Attorney General
and the Interested Parties however, contend that the said parcels were acquired for the South Nyanza
Sugar Scheme but specically for the expansion of Awendo Township, a purpose, that is still ongoing.
The Interested Parties submit that they have utilized their allocated plots for residential, commercial
and other purposes in furtherance of the expansion of Awendo Township.

(46) Having already pronounced ourselves regarding the meaning to be attributed to the Gazette Notices,
we now proceed to determine the legal standing of the Respondents vis-a-vis what they consider as un-
utilized portions of land. In this regard, neither the retired Constitution, nor the Land Acquisition
Act, provide any direction as to what should happen to land that remains un-utilized after the public
purpose for which it was compulsorily acquired becomes spent.

(47) We begin by reasserting the long held legal principle that, land which has been compulsorily acquired,
must be used for the purpose for which it was acquired. If for example, after compulsorily acquiring
land, the Government or any of its agencies, proceeds to allocate the said land, to individuals or other
entities, for their own private benet, in total disregard of the public purpose, such allocation would
not confer good title to the allottees. Such was the holding in Niaz Mohammed v. Commissioner for
Lands & 4 Others (1996) eKLR in which Waki J, (as he then was) rendered himself thus:

“ I am not persuaded by the argument that upon compulsory acquisition of land and the
consequent vesting of that land in the Government, then the land falls to be used by the
Government in any matter it desires. There is plainly no such Carte Blanche intended in the
provisions of the law…The land must be used, subsequent to the acquisition, for a lawful
purpose, as I see it, the only lawful purpose is the one for which it was intended.”

(48) This position was re-armed by the Court of Appeal in Kenya National Highway Authority v. Salien
Masood Mughal & 5 Others (2017) eKLR. Also of persuasive value, is the decision of the Supreme
Court of India in M/S. Royal Orchid Hotels Ltd & Anor. v. G. Jayarama Reddy & Ors. Civil Appeal
No. 7588 of 2005; in which the question for determination was whether, land acquired for a specic
public purpose, could be used for another purpose not being a public purpose. In that case, instead of

kenyalaw.org/caselaw/cases/view/173045/ 10
 utilizing the acquired land for the purpose specied in the notications or for any other public purpose,
the Corporation transferred the same to private parties. The Supreme Court of India held:

“ The Courts have repeatedly held that in exercise of its power of eminent domain, the State
can compulsorily acquire land of the private persons but this proposition cannot be over-
stretched to legitimize a patently illegal and fraudulent exercise undertaken for depriving the
landowners of their constitutional right to property with a view to favour private persons….
The diversication of the purpose for which land was acquired under Section 4(1) read with
Section 6 clearly amounted to a fraud on the power of eminent domain.”

(49) Thus far, these judicial pronouncements in our view represent the correct legal position regarding
compulsorily acquired land, under both the retired Constitution and the 2010 Constitution.

(50) However, the question as to what should happen to un-utilized land remains unanswered. It is worth
reiterating that under the law as it then stood, the original owners of compulsorily acquired land have
no reversionary rights in that land. In Niaz Mohamed v. Commissioner of Lands, [supra]; Justice Waki
appeared to suggest that such land would legally revert to the original owners through Equity. The
learned judge opined thus:

“ ….Un-utilized portions in my view would remain as road reserves. And if it was the case that
it was found unnecessary after all to have acquired the portion for the expressed purpose,
does equity not require that the portions be surrendered back to the person from whom the
land was compulsorily acquired?” [Emphasis added].

(51) The fallback to Equity is compelling, given that what is involved here, is land, a subject that unendingly
continues to generate, emotive disputes among all and sundry. Indeed, Equity grew out of the
interstices of Common Law rigidity. The doctrines that have catapulted it into the cosmos of law are
themselves handmaidens of justice and fairness. But even Equity, in all its splendor, follows the law,
lest it be deformed, by judicial caprice or whim. Therefore, in the face of clear constitutional and legal
provisions, that extinguish private title to compulsorily acquired land, not even Equity can resuscitate
such title to un-utilized portions thereof.

(52) The public purpose, for which the land was compulsorily acquired, may have been spent, but the un-
utilized portions thereof, remain public land. It is therefore our view, that such land as remains un-
utilized can only be applied to a public purpose, or be utilized to promote the public interest, even
if the said interest is not such as had been originally envisaged. Un-utilized portions of land, may in
this instance, be allocated to private entities, including those from whom the land was acquired, at a
price, provided that, the land is to be put to such use as will promote the public interest. The Privy
Council decision in Blancheld and Others v. Attorney General and Another (2002) 4 LRC 689;
is persuasively instructive in this regard. This was an appeal against the judgment of the Court of
Appeal of Trinidad and Tobago. The plaintis were descendants of landowners, whose land had been
compulsorily acquired by the government. They had sought a declaration that the land in question
should automatically revert to them by operation of law, since the said land was no longer required for
the purpose for which it had been acquired. The Privy Council held:

“ In the absence of an express reverter clause in the enabling legislation or in the conveyance
or order by which the land was conveyed to or vested in the acquiring authority, none
can be implied. Consequently, where land compulsorily acquired becomes surplus to the
requirements of the acquiring authority, there is no automatic reversion in favour of the
original owners or their descendants.” (Emphasis added).

kenyalaw.org/caselaw/cases/view/173045/ 11
(53) In the Indian case of Gulam Mustafa & Ors v. The State of Maharashtra & Ors 1977 AIR 448, 1977
SCR (1) 875, certain land was compulsorily acquired for running a country fair or market. After the
acquisition, the municipality parcelled out the excess land and sold it for a housing colony. On appeal
to the Supreme Court of India, it was contended that the acquisition by the housing colony was not
for a public purpose and that it was mala de. With regard to the status of the excess land, the Supreme
Court held:

“ Once the original acquisition is valid and title has vested in the Municipality, how it uses
the excess land is no concern of the original owner and cannot be the basis for invalidating
the acquisition. There is no principle of law by which a valid compulsory acquisition stands
voided because long later the requiring authority diverts it to a public purpose other than
the one stated in the s. 5(3) declaration.”

(54) Even as the law as we have pronounced it, appears to be clear, it is imperative that we consider the
provisions of the 2010 Constitution to determine whether any insights can be drawn therefrom for a
just and fair resolution of the dispute at hand. In this regard, we derive inspiration from this Court’s
dictum in Samuel Kamau Macharia & 2 Others v. Kenya Commercial Bank & 2 Others [2012] eKLR;
on when a court of law may fall back to the provisions of the Constitution of 2010 in determining a
dispute that may have crystallized before the promulgation of the Constitution. At paragraph 62, the
Court stated:

“ At the onset, it is important to note that a Constitution is not necessarily subject to the
same principles against retrospectivity as ordinary legislation. A Constitution looks forward
and backward, vertically and horizontally, as it seeks to re-engineer the social order, in
quest of its legitimate object of rendering political goods. In this way, a Constitution may
and does embody retrospective provisions, or provisions with retrospective ingredients.
However, in interpreting the Constitution to determine whether it permits retrospective
application of any of its provisions, a Court of law must pay due regard to the language of
the Constitution. If the words used in a particular provision are forward-looking, and do not
contain even a whi of retrospectivity, the Court ought not to import it into the language of
the Constitution. Such caution is still more necessary if the importation of retrospectivity
would have the eect of divesting an individual of their rights legitimately acquired before
the commencement of the Constitution.”

(55) When certifying this appeal as one involving a matter of general public importance, the determination
of which, goes beyond the interests of the parties, we were cognizant of the fact that similar disputes
were likely to occur in other parts of the Country. In resolving such disputes as may occur post the 2010
Constitution, our decision in this appeal will no doubt be instructive, hence the need to consider the
relevant provisions of the Constitution, to the extent that the same are backward and forward looking.

(56) The relevant provisions for purposes of this appeal are as follows:

Article 40 (3) and (4) of the Constitution provide thus:

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

(a) results from an acquisition of land or an interest in land or a

conversion of an interest in land, or title to land, in accordance with
Chapter Five; or

kenyalaw.org/caselaw/cases/view/173045/ 12
 (b) is for a public purpose or in the public interest and is carried out in
accordance with this Constitution and any Act of Parliament that:

i. requires prompt payment in full, of just

compensation to the person; and

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

(4) Provision may be made for compensation to be paid to occupants in good faith
of land acquired under clause (3) who may not hold title to the land.”

(57) The provisions relating to the doctrine of “Eminent Domain” as are enshrined in Article 40 of the
2010 Constitution, and Part VIII, of the Land Act (Sections 107 to 133), mirror those of Section 75
of the retired Constitution, and Section 6 of the Land Acquisition Act (now repealed) with a few
modications. Towards this end, Section 110 (1) of the Land Act provides that:

“ Land may be acquired compulsorily under this Part if the Commission certies, in writing,
that the land is required for public purposes or in the public interest as related to and
necessary for the fulllment of the stated public purpose.”

Subsection 2 of the said Section provides that:

“ If, after land has been compulsorily acquired, the public purpose or interest justifying the
compulsory acquisition fails or ceases, the Commission may oer the original owners or
their successors in title pre-emptive rights to re-acquire the land, upon restitution to the
acquiring authority the full amount paid as compensation.”

Article 62 (2) of the Constitution provides that:

“ Public land shall vest in and held by a county government in trust for the people resident in
the county, and shall be administered on their behalf by the National Land Commission…”

(58) Article 68 (c) (ii) of the Constitution provides that Parliament shall enact legislation to regulate the
manner in which any land may be converted from one category to the other.

(59) Section 110 (2) of the Land Act introduces the concept of “Pre-Emptive Rights” over compulsorily
acquired land. Where the purpose justifying the compulsory acquisition fails or ceases, then the original
owners or their successors in title have the pre-emptive rights to re-acquire the land upon payment of
the full amount received as compensation. In view of our analysis however, a pre-emptive right is not
the same as “ a reversionary interest.” The former arises, consequent upon the failure or cessation of
the purpose justifying the compulsory acquisition; while the latter reposes in the holder of a superior
title and becomes exercisable upon the expiry of an estate.

60. By the same token, it cannot be said that the land over which the pre-emptive right of re-acquisition
arises upon failure or cessation of the public purpose, is the same as un-utilized land or portion
of land that remains once the public purpose becomes spent. In the former case, there is a total
failure of the public purpose, meaning that the acquired land cannot be used as earlier envisaged.
The wording of Section 110 (2) of the Land Act is permissive (“the Commission may oer”) in the
sense that the acquiring authority, is not necessarily barred from applying the land to another public
purpose. However, should it decide to abandon the land to private purchase, then the original owners
have the pre-emptive rights to re-acquire the land upon restitution of the full sum that was paid in

kenyalaw.org/caselaw/cases/view/173045/ 13
 compensation. The land to be re-acquired in this case is the “whole” as opposed to “a portion thereof”.
This explains why the sum of money to be restituted by the original owners is “the full amount paid in
compensation.” In the latter case, the public purpose has been realized, but the acquired land has not
been utilized in full, leaving a portion thereof. In this instance, neither the original owners, nor their
successors in title have pre-emptive rights to re-acquire the un-utilized portions.

(61) On the basis of the foregoing analysis, we hereby issue the following guiding principles:

General Principles

1. Where the Government, pursuant to the relevant constitutional and legal

provisions, compulsorily acquires land, such land, shall only be used for the
purpose for which it was compulsorily acquired.

2. The allocation of compulsorily acquired land, to private individuals or entities,

for their private benet, in total disregard of the public purpose or interest for
which it was compulsorily acquired, shall be incapable of conferring title to
that land in favour of the allottees.

3. A person whose land has been compulsorily acquired in accordance with the
relevant constitutional and legal provisions does not retain any reversionary
interest in the said land.

4. Un-utilized portions of compulsorily acquired land may be used for a dierent

public purpose, or in furtherance of a dierent public interest, including the
allocation of such portions to private individuals or entities, at the market
price, in furtherance of such public interest.

(62) Consequently, owing from the above analysis and guiding principles, we nd and hold as follows:

Gazette Notices Nos. 2996 and 3737 of 1976

1. Through the instrumentality of Gazette Notices Nos. 2996 and 3737 of

1976, all parcels of land whose land titles are listed therein respectively, were
compulsorily acquired and vested in the Government of Kenya.

2. The Appellant herein (or its successor in title) holds that land in trust for the
residents of the area, and as the Implementing Agency of the public purpose
for which the land was compulsorily acquired.

3. The letter written by the Land Registrar, directing the Appellant to re-survey
the land and allocate the same to the original owners or their successors in title
had no legal basis.

4. The 1st and 13th Respondents have no reversionary interest in the parcels of
land listed in the two Gazette Notices, since titles thereto were extinguished
through the compulsory acquisition of the same.

5. The purpose for the acquisition of all those lands listed in Gazette Notice No.
3737 of 1976 (The Suit Land) was for the expansion of Awendo Township in
South Nyanza District. Such expansion, was necessitated by the establishment
of South Nyanza Sugar Scheme, through Gazette Notice No. 2996.

6. The land comprised in Gazette Notice No. 3737 was not “un-utilized land”,
given the fact that the expansion of Awendo Township is an on-going process.

kenyalaw.org/caselaw/cases/view/173045/ 14
 7. The allocation of various parcels of land comprised within Gazette Notice
No.3737, at a price, to the Interested Parties, for the establishment of
residential, commercial and other amenities such as churches, etc, was in
furtherance of the expansion of Awendo Township.

8. By purchasing the said plots, and using them for residential, commercial and
other purposes in consonance with the public interest, and in the absence of
any proof of fraud on the part of the Interested Parties, the latter acquired valid
title which cannot be defeated by the claims of the Respondents herein.

(63) These conclusions lead us to make the following Orders:

D. orders
(64)

(i) The Petition of Appeal dated 10th December 2014 is hereby allowed.

(ii) The Judgment of the Court of Appeal dated 18th October, 2013 is hereby overturned.

(iii) The 7th Respondent herein shall be fully compensated by the Government of Kenya for the
loss of his Land Title No. North Sakwa/Kamasonga/1193.

(iv) Each Party shall bear its own costs of this Appeal.
Orders accordingly.
DATED AND DELIVERED AT NAIROBI THIS 30TH DAY OF APRIL, 2019.
D. K. MARAGA
CHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT
M. K. IBRAHIM
JUSTICE OF THE SUPREME COURT
S. C. WANJALA
JUSTICE OF THE SUPREME COURT
NJOKI NDUNGU
JUSTICE OF THE SUPREME COURT
I. LENAOLA
JUSTICE OF THE SUPREME COURT
I certify that this is a true copy of the original
REGISTRAR
SUPREME COURT OF KENYA

kenyalaw.org/caselaw/cases/view/173045/ 15