Tribunal Ruling on Nairobi-Western Bypass Land Acquisition: A Shift in Compulsory Acquisition Law
On March 24, 2025, the Land Acquisition Tribunal issued a significant ruling in a dispute brought by a project-affected person along the Nairobi-Western Bypass Road Project. The case centered on two parcels of land targeted for acquisition by the Kenya National Highways Authority (KeNHA), through the National Land Commission (NLC), to facilitate the road’s expansion. Despite the issuance of a notice of intent, the acquisition process stalled, leaving the land in the claimant’s possession. Notably, the claimant had even used one of the properties as collateral for a bank loan during the pendency of the process.
Prof. Albert Mumma & Company Advocates, had the privilege of representing KeNHA in the matter and argued that the acquisition had lapsed under Section 111(1B) of the Land Act. This provision stipulates that if compulsory possession or vesting of title in the government does not occur within two years of the notice of intention to acquire, the acquisition process expires. In this case, with no transfer of possession or title after the statutory period, they contended that the process should be deemed void.
The Tribunal, however, took a different view. It held that an acquisition can only lapse if the acquiring entity formally requests cancellation, as outlined in Section 123 of the Land Act. Furthermore, the Tribunal ruled that an award issued within the 24-month statutory period remains enforceable against the government, even if possession or vesting has not occurred. This interpretation effectively sustains the acquisition process beyond the apparent deadline set by Section 111(1B).
A Questionable Interpretation
They respectfully submit that the Tribunal’s reasoning overlooks the plain language of Section 111(1B). The section begins with a clear proviso: “Provided that regardless of the form of compensation under this section…” the acquisition lapses if not completed within 24 months. This phrasing suggests that the lapse occurs automatically, irrespective of any award, when the government fails to take possession or secure title. By prioritizing the subsistence of an award over the statutory timeline, the Tribunal’s decision appears to undermine the legislative intent behind the provision.
Implications for Compulsory Acquisition
This ruling carries profound implications for land acquisition law in Kenya. If upheld, it suggests that no acquisition can lapse under Section 111(1B), even where the process remains incomplete beyond the two-year limit, unless the acquiring authority actively cancels it. This effectively nullifies the statutory safeguard designed to protect landowners from indefinite uncertainty and ensures that awards remain binding on the government, regardless of its failure to act.
For stakeholders in infrastructure projects, this decision underscores the need for vigilance in monitoring acquisition timelines and challenging procedural delays. It also highlights a potential tension in the Land Act that may require clarification through legislative reform or higher judicial review.
Adapted from: Ochieng' Wilfred