Commissioner of Lands & another v Kunste Hotel Ltd & another (Civil Appeal 234 of 1995) [1997] KECA 413 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that the Commissioner of Lands must hear anyone whose rights are affected before allotting public land, even without registration.
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 that site 'C' would be left as a road reserve was ascertainable and binding notwithstanding absence of registration
- 4.Whether the High Court's order of certiorari quashing the allotment should be affirmed
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 issuing prerogative orders exercises special jurisdiction outside civil or criminal jurisdiction, so the statutory notice provisions do not apply
Section 3 of the Interpretation and General Provisions Act defines 'action' as civil proceedings including a suit. Section 8(1) of the Law Reform Act, read with section 7 of the UK Administration of Justice (Miscellaneous Provisions) Act 1938, converted writs to orders and shows the court is not exercising civil or criminal jurisdiction when issuing prerogative orders. The notice provisions contemplate a suit under the Civil Procedure Act. Cases cited on notice were therefore irrelevant.
Whether the Commissioner of Lands was obliged to consult Kunste Hotel Limited before allotting the subject plot
Yes. The exercise of the statutory power to allot clearly affected the hotel's legal rights, making the exercise judicial in nature and requiring a hearing of all persons likely to be affected
The Commissioner was aware of the 1976 request by Mr Kagiri that site 'C' be left as a road reserve, and the correspondence showed the appellant accepted that request. The hotel's interest was sufficient and obvious even though unregistered; it could not be argued that absence of registration extinguished the interest entitling the hotel to a hearing. Other parties were consulted but the hotel was not.
Whether the assurance that site 'C' would be a road reserve was ascertainable despite no registered restrictive covenant
The subject plot was clearly the one Mr Kagiri had requested be left as a road reserve, and the appellant's 1977 reply accepted that request; absence of registration did not negate the assurance
Only two plots lay between the hotel and the Nakuru-Nairobi highway; the subject plot was vacant and unalienated, so it was plainly the plot Mr Kagiri meant. The appellant's reply approving a revised plan 'in accordance with your request' could only refer to preserving site 'C' as a road reserve. Counsel's restrictive-covenant registration argument was rejected.
Legal principles established
#- An application for an order of certiorari or any prerogative order 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 a statutory decision-maker exercises a discretion that affects the legal rights of a person, the exercise is judicial in nature and the person likely to be affected must be heard before 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
- 2.Appellant to pay costs of the appeal
- 3.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
- Jurisdiction invoked
- First appeal to the Court of Appeal against an order of judicial review (certiorari) issued by the High Court under Order LIII rules 1 and 2 of the Civil Procedure Rules and section 8 of the Law Reform Act (Cap 26)
Relief refused
#Setting aside the order of certiorari quashing the allotment of the plot to the interested party
The Commissioner of Lands exercised a judicial statutory power affecting the legal rights of the hotel and was obliged to consult it before allotting the plot
Costs
Appeal dismissed with costs to the respondent (Kunste Hotel Limited)
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.
we are able to discern that an application for an Order of Certiorari or any of the prerogative orders is not an action
judicial review is concerned not with private rights or the merits of the decision being challenged but with the decision making process
The exercise of that power was therefore judicial in nature and he was therefore obliged to hear all those who were likely to be afiected by his decision
Rimita, J. was therefore, right in the conclusions he came to, and we accordingly afirm his decision and dismiss this appeal with costs.
Issues in the judgment
#The judgment contains typographical errors (e.g. 'efiect', 'afiect', 'judical', 'raches') and the date of the allotment letter is inconsistently stated as 3rd May, 1995 in paragraph 1 but 3rd May, 1993 in paragraph 6
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Commissioner of Lands & another v Kunste Hotel Ltd & another (Civil Appeal 234 of 1995) [1997] KECA 413 (KLR)", Case Analysis (1997). Civil Appeal (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/413/eng@1997-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.