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Court of AppealPartially AllowedCivil Appeal No 126 of 2014· [2019] KECA 942 (KLR)

Shree Visa Oshwal Community Nairobi Registered Trustees v Attorney General & 3 others (Civil Appeal 126 of 2014) [2019] KECA 942 (KLR)

Court of Appeal of Kenya
22 February 2019
William OukoW. OukoMohamed Abdulahi WarsameM. WarsameASAsike-Makhandia
5,893 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed the government cannot repossess leased private land through a notice alone - forfeiture requires a court order.

What this practically means

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Executive summary

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The appellants, trustees of the Shree Visa Oshwal Community, held a 99-year lease granted in 1961 over LR No. 209/5996 in Parklands, Nairobi, subject to twelve special conditions, including condition No. 12 permitting surrender of the land for a public purpose without compensation save for approved buildings. Following disputes over the operation of Visa Oshwal Primary School, the Commissioner of Lands issued a notice on 4th January 2013 invoking condition No. 12 and demanding surrender of the land within six months, on the allegation that the school had been converted from a public to a private/commercial school. Lenaola, J dismissed the appellants' constitutional petition, holding that the school was public and that no rights under Articles 40, 47 and 48 had been violated. Allowing the appeal, the Court of Appeal held that conditions 3 and 4 of the Grant never restricted the school's classification as public or private, so the notice was based on a non-existent condition. Leasehold land is private land under Article 64(b), and forfeiture of a lease can only be achieved through the procedure in section 31 of the Land Act - notice, court action and judicial declaration - not by administrative fiat. Condition No. 12, purporting to allow automatic deprivation without hearing or compensation, was declared contrary to the Constitution and superseded by more progressive laws. The Court found violations of Articles 40, 47 and 48, granted declarations and a permanent injunction, but declined compensation since the appellants suffered no demonstrated loss beyond receipt of the notice. The appeal was allowed with no orders as to costs.

Key legal issues

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01

Breach of the special conditions of the Grant

Holding

Conditions 3 and 4 did not specify whether the school had to be public or private; the 2nd respondent's notice was based on a non-existent condition and the High Court considered the wrong question.

Reasoning

The court read conditions 3 and 4 plainly: the land was to be used for 'a school' and the grant would determine if 'the school' ceased to function as such. The conditions did not prescribe the category of school. The registration certificates' oscillation between 'private' and 'public' within one month showed the classification was an administrative matter of the Ministry, not a term of the lease. The notice of 4th January 2013 was therefore erroneously grounded on a condition that did not exist.

p. 7
02

Validity of Special Condition No. 12

Holding

Condition No. 12, allowing surrender without compensation or hearing, was contrary to the Constitution and the law, having been superseded by more progressive laws.

Reasoning

Section 31 of the Land Act prescribes the exclusive forfeiture procedure: notice specifying the breach, court action, and a judicial declaration of forfeiture subject to relief. Article 40 prohibits arbitrary deprivation and requires just compensation and access to court. A condition purporting to automatically deprive a lessee of property at the expiry of a notice, without a hearing, contravened Articles 40, 47 and 48 and the Fair Administrative Action Act.

p. 10
03

Violation of fair administrative action and right to property

Holding

The notice infringed Articles 40, 47 and 48 because it demanded surrender without following the statutory procedure or affording a fair hearing.

Reasoning

Section 4 of the Fair Administrative Action Act guarantees written reasons and an opportunity to be heard, including cross-examination of those giving adverse evidence. The impugned notice merely alleged conversion of the school and demanded surrender within six months without particulars, without a hearing, and without resort to section 31 of the Land Act. The learned Judge ought to have declared the appellants' rights infringed.

p. 9
04

Remedies for constitutional violations

Holding

A declaration of rights and a permanent injunction were appropriate; compensation was refused as no damage beyond receipt of a notice was demonstrated.

Reasoning

Under Article 23, the court may grant declarations, injunctions, conservatory orders and compensation. Relying on Gitobu Imanyara, the primary purpose of a constitutional remedy is to vindicate rights and deter future infringement, not to compensate. Since the appellants had only received a notice and not been dispossessed, a declaration and injunction sufficed, and the prayer for compensation was declined.

p. 11

Legal principles established

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  • A lease may only be forfeited by following the statutory procedure in section 31 of the Land Act, including service of a notice and an action in court; forfeiture cannot be effected by simple administrative notice under a special condition in a grant.
  • When Parliament confers powers on a public authority with a clear framework, the authority must strictly comply with that procedure for its decision to be valid.
  • Leasehold land held under a lease is private land under Article 64(b) of the Constitution and may only be deprived in the public interest, in accordance with the law, and with prompt payment in full of just compensation.
  • The High Court's finding that the school's classification as public or private determined the fate of the lease was an error; the special conditions did not distinguish between categories of school.

Court orders

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  1. 1.Appeal allowed
  2. 2.Declaration that the appellants' rights and fundamental freedoms under Articles 40, 47 and 48 were infringed
  3. 3.Declaration that Special Condition No. 12 of the Grant is contrary to the Constitution and the law
  4. 4.Permanent injunction restraining the 2nd and 3rd respondents from interfering with the appellants' quiet possession of the suit property or evicting them by invoking Special Condition No. 12
  5. 5.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40 (including 40(2), 40(3)(b))
  • Constitution of Kenya, 2010Article 47 (including 47(1), 47(2))
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 23
  • Constitution of Kenya, 2010Article 24
  • Constitution of Kenya, 2010Article 63(2)(a)
  • Constitution of Kenya, 2010Article 64(b)
  • Constitution of Kenya, 2010Article 258
  • Land Act, 2012Sections 23, 26, 31, 107-118, 111-119, Part VIII
  • Land Registration Act, 2012Sections 23, 24
  • Fair Administrative Action ActSection 4
  • Education ActSection 2
  • Basic Education ActSection 43(1)(a)
  • Government Lands Act (repealed)Section 77(1)
  • Crown Lands Ordinance (repealed)General
  • Registration of Titles Ordinance, Cap 160 (repealed)General
  • Education Ordinance, 1952General
  • Court of Appeal RulesRule 29
  • Former Constitution of Kenya (repealed)Section 75

Cases cited (10)

  • Clarke v Sondhi Ltd
    (1963) EA 107
  • Coastal Aquaculture & Anor v Commissioner of Lands
    Civil Appeal No. 252 of 1996
  • Resley v The City Council of Nairobi
    (2006) 2 EA 311
  • Kenya Ports Authority v Kusthon (Kenya) Limited
    [2009] 2 EA 212
  • Cullimore vs Lyme Regis Corporation
    (1962) I Q B 718
  • Jacqueline Resley v. The Nairobi City Council
    H.C Misc. Application No. 1517 of 2001
  • Adan Abdikadir Hassan & 2 Others v the Registrar of Titles, Ministry of Lands
    HCCC Petition No. 7 of 2012
  • James Joram Nyaga & Anor v The Attorney General & 2 Others
    Misc Civil Application No. 1732 of 2004
  • Gitobu Imanyara & 2 others v Attorney General
    Civil Appeal No. 98 of 2014
  • Tamara Merson v Drexel Cartwright and Ag
    (Bahamas) Privy Council Appeal No. 61 of 2003
On appeal from
High Court of Kenya at Nairobi
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Rules (Rule 29), on appeal from the dismissal of a constitutional petition

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (12)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Shree Visa Oshwal Community Nairobi Registered Trustees v Attorney General & 3 others (Civil Appeal 126 of 2014) [2019] KECA 942 (KLR)", Case Analysis (2019). Civil Appeal No 126 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/942/eng@2019-02-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.