Wetlands, Jurisdiction
In 1993, the Commissioner of Lands, caused to be published in a Gazette Notice, under the heading “Intention to Acquire Land”, that in pursuance of section 6(2) of the Land Acquisition Act, he was giving notice that the Government intended to acquire land which belonged to Coastal Aquaculture Ltd, the respondent herein, “for Tana River Delta Wetlands”. The Commissioner also caused to be published another Gazette Notice of the same date, giving notice of the date when an inquiry would be held to hear claims to compensation by those affected by the acquisition of the same land, which was the respondent. But before the inquiry could begin, the respondent charged that not only, was the Gazette Notice defective because the date stated therein for the hearing of the inquiry did not comply with section 9 (1) of the Act, but also that the Gazette Notice giving notice of the intention to compulsorily acquire the respondent’s land, was, having regard to section 6 (1) of the Act, defective in that it did not state either the public body for which the acquisition was being made, or the public purpose to be served by the acquisition. The respondent requested the Commissioner to publish fresh Gazette Notices which satisfied the provisions of the Act. The Commissioner did nothing about the complaint made that Gazette notice was defective. The respondent applied to the High Court in Mombasa for leave to apply for an order of prohibition to restrain the Commissioner from commencing and or continuing with the inquiry into claims to compensation under the Act as notified in the Gazette Notices, inter alia, on the ground that the Gazette Notices above mentioned, were defective as they failed to set out the public body for which the respondent’s land was being compulsorily acquired and the public purpose for which the acquisition was intended. The Court of Appeal held that in Kenya, where the statutory power to compulsorily acquire a person’s land against his will was first derived from the carefully worded provisions of the Constitution itself; where land was a most sensitive issue; and where in effect, the land in question had already been compulsorily acquired, though not taken possession of, by the time the interested party was notified so as to make his claim for compensation, there was all the more reason to ensure that all procedures related to compulsory acquisition had not only to be strictly pursued, but also had to appear to be so on the face of the Inquiry. Moreover, the court held that the Inquiry was lacking jurisdiction. The appeal was dismissed.