Commissioner Of Lands v Kunste Hotel Limited [1997] KECA 335 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that public officials must hear people affected by their land decisions, and judicial review cases don't need special statutory notice.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an application for an order of certiorari is an 'action' requiring statutory notice under Section 136(2) of the Government Lands Act and Section 13A of the Government Proceedings Act
- 2.Whether the Commissioner of Lands was obliged to consult or hear Kunste Hotel Limited before allotting the subject plot to the interested party
- 3.Whether the assurance given to Mr. Kagiri in 1976-1977 that site 'C' would be left as a road reserve bound the Commissioner of Lands
- 4.Whether the decision of the High Court granting certiorari quashing the allotment should stand
Key legal issues
#Whether judicial review proceedings require statutory notice under Section 136(2) of the Government Lands Act and Section 13A of the Government Proceedings Act
An application for certiorari is not an 'action'; the High Court issues prerogative orders in a special jurisdiction outside its civil or criminal jurisdiction, so the statutory notice provisions do not apply.
The term 'action' is defined in the Interpretation and General Provisions Act as civil proceedings in a court. Section 8(1) of the Law Reform Act denies the High Court power to issue prerogative orders in the exercise of civil or criminal jurisdiction; following the Administration of Justice (Miscellaneous Provisions) Act 1938 (UK), writs became orders. Judicial review is therefore a special jurisdiction outside the ambit of the notice provisions, rendering the cases cited by the appellant irrelevant.
Whether the Commissioner of Lands was obliged to consult Kunste Hotel Limited before allotting the subject plot
Yes. The exercise of the Commissioner's statutory discretion under the Government Lands Act affected the hotel's legal rights, making the exercise judicial in nature and requiring a hearing of all persons likely to be affected.
The evidence showed the subject plot was the one Mr. Kagiri had requested be left as a road reserve, and the Commissioner's 1977 reply accepted that request. The Commissioner consulted various parties but not the hotel, despite being aware of the 1976 request and the hotel's occupation and maintenance of the plot. The absence of a registered restrictive covenant did not disentitle the hotel to a hearing.
Whether the 1976-1977 correspondence created an assurance that site 'C' would be left as a road reserve
Yes. Of the three alternatives proposed by Mr. Kagiri, the only one the Commissioner accepted was that site 'C' be left as a road reserve, since the plot was not consolidated and the hotel boundary did not extend to the highway.
The court analysed the correspondence: the revised allotment did not consolidate plots 'A', 'B' and 'C', and the hotel land does not abut the Nakuru-Nairobi highway. Only the road-reserve alternative remained. The court rejected the interested party's argument that an unregistered restrictive covenant meant no right was intended, since it was impossible to discern which other request the Commissioner's acceptance referred to.
Legal principles established
#- An application for an order of certiorari or any of the prerogative orders is not an 'action', so statutory notice under Section 136(2) of the Government Lands Act and Section 13A of the Government Proceedings Act is not required for judicial review proceedings
- Where the exercise of a statutory discretion by a public officer affects the legal rights of a person, the exercise of that power is judicial in nature and the officer must hear all those likely to be affected by the decision
- Judicial review is concerned with the decision-making process, not with private rights or the merits of the decision
Court orders
#- 1.Appeal dismissed with costs
- 2.Decision of the High Court (Rimita, J.) granting an order of certiorari quashing the allotment of the plot to the interested party affirmed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- Misc. Civil Case No. 79 of 1995
- Jurisdiction invoked
- First appeal to the Court of Appeal against orders of the High Court in a judicial review motion (Order LIII rules 1 and 2 of the Civil Procedure Rules; Section 8 of the Law Reform Act, Cap 26)
Relief refused
#The appellant's request to set aside the order of certiorari quashing the allotment
The Commissioner was obliged to consult the hotel before allotting the plot, having been aware of the 1976 request that site 'C' be preserved as a road reserve
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Rimita, J. was therefore, right in the conclusions he came to, and we accordingly affirm his decision and dismiss this appeal with costs.
The exercise of that discretion clearly affected the legal rights of Kunste Hotel Ltd. The exercise of that power was therefore judicial in nature and he was therefore obliged to hear all those who were likely to be affected by his decision
judicial review is concerned not with private rights or the merits of the decision being challenged but with the decision making process.
when looked at together with the provisions of S.8 of the Law Reform Act, Cap 26 Laws of Kenya, we are able to discern that an application for an Order of Certiorari or any of the prerogative orders is not an action.
we are unable to appreciate why public funds and resources are being employed in the pursuit of privateinterests.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (18)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Njage v Principal Magistrate, Kerugoya Law Courts & 5 others (Environment and Land Case Judicial Review Application E005 of 2024) [2026] KEELC 4711 (KLR)[2026] KEELC 4711 (KLR)22 Jul 2026
- Republic v Director of Surveys & 3 others (Environment and Land Judicial Review Case E010 of 2025) [2026] KEELC 4104 (KLR)[2026] KEELC 4104 (KLR)12 Jun 2026
- Mbugua (Suing as the Administrator of the Estate of Joseph Kiarie Mbugua alias Joseph Kiarie Mbogwa) v Tripple Eight Properties Ltd & 2 others (Civil Appeal 612 of 2019) [2026] KECA 699 (KLR)[2026] KECA 699 (KLR)25 Mar 2026
- Ecosee Mwananchi Limited & another v Chairperson, Business Premises Rent Tribunal, Nairobi & another (Environment and Land Judicial Review Case E021 of 2025) [2026] KEELC 1283 (KLR)[2026] KEELC 1283 (KLR)27 Feb 2026
- Madey & 35 others v Community Land Registrar North Eastern Mandera & 2 others; Hussein & 27 others (Interested Parties) (Environment and Land Judicial Review Case E001 of 2022) [2024] KEELC 4767 (KLR)[2024] KEELC 4767 (KLR)19 Jun 2024
- Njuguna & another v Business Premises Ren Tribunal & 3 others; Maunji (Interested Party) (Miscellaneous Civil Application 1 of 2023) [2024] KEELC 656 (KLR)[2024] KEELC 656 (KLR)15 Feb 2024
- Peter Njuguna Njonge v Julius Narankaik Ologolimot [2021] KEELC 2962 (KLR)[2021] KEELC 2962 (KLR)10 Jun 2021
- John Okello & 19 others v Inspector General of Police & 4 others [2021] KEELC 3786 (KLR)[2021] KEELC 3786 (KLR)22 Mar 2021
- Republic v National Environment Management Authority Ex parte Erdermann Property Ltd; National Environment Tribunal & 4 others (Interested Parties) [2021] KEELC 3974 (KLR)[2021] KEELC 3974 (KLR)19 Mar 2021
- Erdemann Property Limited v National Environment Tribunal; National Environment Management Authority & another (Interested Parties) [2020] KEELC 3063 (KLR)[2020] KEELC 3063 (KLR)23 Apr 2020
- Republic v CS Ministry of Petroleum Mining & 4 others Ex-parte Muthoni Kihara & another [2019] KEELC 927 (KLR)[2019] KEELC 927 (KLR)22 Oct 2019applied
- Republic v Attorney General & others Ex-Parte Gitonga Wambugu Kariuki [2018] KEELC 1479 (KLR)[2018] KEELC 1479 (KLR)3 Oct 2018
- John Macharia Gichigi v Commissioner of Police (Civil Appeal 70 of 2015) (Civ) [2017] KECA 188 (KLR)[2017] KECA 188 (KLR)17 Nov 2017followed
- Republic v Kenya Revenue Authority ex parte Paul Makokha Okoiti [2016] KEELRC 50 (KLR)[2016] KEELRC 50 (KLR)24 Oct 2016followed
- Jane Wangechi Wariari (suing as the legal representative of the estate of Hiram Ndung’u Ng’ayu Deceased) v Registrar Nyeri & another [2015] KECA 424 (KLR)[2015] KECA 424 (KLR)24 Jun 2015applied
- Republic v Registrar of Titles & another Ex parte James Macharia Mwangi [2015] KEELC 518 (KLR)[2015] KEELC 518 (KLR)23 Apr 2015
- Republic v Chairman Amagoro Land Disputes Tribunal & another Eex-parte Paul Mafwabi Wanyama [2014] KECA 190 (KLR)[2014] KECA 190 (KLR)18 Dec 2014
- Peter Kiguta Mwaura & 4 others v Registrar of Societies & 3 others [2010] KECA 330 (KLR)[2010] KECA 330 (KLR)23 Apr 2010followed
Cite this brief
#Cite this brief
Caselaw, "Commissioner Of Lands v Kunste Hotel Limited [1997] KECA 335 (KLR)", Case Analysis (1997). Civil Appeal No. 234 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/335/eng@1997-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.