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Court of AppealDismissedNot stated in judgment (Court of Appeal, Kisumu)· [2020] KECA 432 (KLR)

Dola & 2 others v Chairman, National Land Commission & 5 others (Civil Appeal 17 of 2017) [2020] KECA 432 (KLR)

Court of Appeal of Kenya
7 August 2020
6,490 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed Kenya's National Land Commission can review and recommend revocation of private titles created from illegally allocated public land.

What this practically means

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Executive summary

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This Court of Appeal judgment (Ouko, P; Asike-Makhandia and M'inoti, JJAA) dismisses an appeal by Tom Dola, his wife Pauline Dola and son Samuel against the dismissal by Kibunja J. of the Environment and Land Court at Kisumu of their judicial review application challenging the National Land Commission's recommendation to revoke their title to Kisumu/Municipality/Block/x1/210. The property had been allotted to the National Cereals & Produce Board in 1983 and transferred to the Lake Basin Development Authority in 1986; Mr Dola occupied its house as an LBDA employee. It was irregularly allotted to Mrs Dola and two others and registered in 2002 in the names of Mr Dola, his wife and their minor son. Following an LBDA complaint, the Commission reviewed the grant under section 14 of the National Land Commission Act and recommended revocation. The appeal raised two issues: whether the Commission had jurisdiction over land now registered as private, and whether the appellants received a fair hearing. The Court held the Commission's jurisdiction, expressly vested by Articles 67 and 68 of the Constitution and section 14 of the Act, covers historical conversion of public land into private land, and that the Constitution is not merely prospective as regards review of irregular grants of public land. On fairness, the record showed Mr Dola received multiple notices and appeared before the Commission; hearing the prime mover sufficed for the co-registered wife and minor son. Mr Dola was found not to be a bona fide purchaser. The decision below was affirmed and the appeal dismissed with costs to the Commission, its chairman and LBDA. This ruling binds lower courts on the Commission's jurisdiction over converted public land.

Key legal issues

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01

Jurisdiction of the National Land Commission over land that has been converted from public to private through irregular grants

Holding

The Commission's jurisdiction extends to reviewing grants and dispositions of public land to establish their propriety or legality, even where the land has since been registered as private land.

Reasoning

The Constitution created the Commission to address widespread theft of public land. Article 67(e) empowers it to investigate present or historical land injustices, and Article 68(c)(v) directed legislation enabling review of all grants of public land. Article 40(6) excludes protection of unlawfully acquired property. Interpreting the Constitution to shield land merely because it is now registered privately would defeat a major plank of the Constitution and the purpose, values and principles of the Constitution under Article 259. The High Court decisions holding otherwise were not followed.

p. 8
02

Retrospective application of the Constitution of Kenya 2010 and the National Land Commission Act to dispositions made before their commencement

Holding

As regards review of grants and dispositions of public land illegally or irregularly acquired, the Constitution is not merely prospective; the Commission's review mandate applies to historical land injustices.

Reasoning

Relying on the Supreme Court's principles in Samuel Kamau Macharia, the Court noted that a Constitution is not necessarily subject to the same principles against retroactivity as ordinary legislation. The mischief the Constitution addressed was land grabbing and rampant theft of public land. Article 67(e) expressly covers historical land injustices, and section 14 of the National Land Commission Act establishes mechanisms for reviewing grants already made out of public land.

p. 8
03

Whether the appellants were afforded a fair hearing by the Commission

Holding

Mr Dola was afforded a fair hearing through repeated notices and an appearance before the Commission; whether a fair hearing was given depends on the circumstances of each case.

Reasoning

The record showed the Commission wrote to Mr Dola on 24th March 2016, invited him to hearings on 14th June and 23rd August 2016, published a newspaper notice, and that Mr Dola actually appeared before it. His claim that he learnt of the proceedings only on the morning of the hearing was contradicted by the record and by his own disciplinary proceedings and dismissal by LBDA over the same property.

p. 10
04

Whether failure to separately hear Mrs Dola and Samuel nullified the Commission's decision

Holding

The complaint was a red herring; hearing the prime mover, Mr Dola, sufficed where Mrs Dola was a mere cog in the wheel and Samuel was a minor who knew nothing of the registration.

Reasoning

The evidence showed Mrs Dola applied for allocation of the property well aware it belonged to LBDA, effectively acting for her husband, while Samuel was a minor at registration. In the circumstances the trial court correctly concluded that the three registered owners were heard when Mr Dola, the prime mover, was heard.

p. 10
05

Whether Mr Dola could claim protection as a bona fide purchaser for value without notice

Holding

Mr Dola was not a bona fide purchaser; he had express notice of LBDA's ownership, misled his employer about the acquisition, and disregarded its instruction not to deal with the property.

Reasoning

Applying the Black's Law Dictionary definition, the Court found Mr Dola had express notice that the property belonged to LBDA, occupied it as his official residence, knew his wife had applied for its allotment, told LBDA it had been acquired by 'some Kalenjins', and proceeded with dealings despite LBDA's express instruction. He was an active participant in the illegal transfer of public land.

p. 11

Legal principles established

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  • The National Land Commission has jurisdiction, vested in it by the Constitution and the National Land Commission Act, to inquire into the process and legality of how public land ended up registered as private land; that jurisdiction cannot be ousted on the bare argument that previously public land has since become private land.
  • Transformation of public land into private land through irregular or illegal grants cannot defeat the Commission's constitutional mandate to review such grants and dispositions.
  • The constitutional right to property under Article 40 does not extend to property found to have been unlawfully acquired, and this provision applies to review of dispositions and grants of public land that were illegally or irregularly acquired, including historical injustices.
  • Courts will not readily interfere with the discharge of constitutional mandates vested in state institutions unless it is demonstrated that the institution acted ultra vires or in breach of the Constitution or the law.

Court orders

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  1. 1.Dismissal of the appeal in its entirety
  2. 2.Costs of the appeal to the Commission, its chairman, and LBDA
On appeal from
Environment and Land Court at Kisumu
Jurisdiction invoked
First appeal / appeal against judicial review decision of the Environment and Land Court pursuant to the appellate jurisdiction of the Court of Appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Dola & 2 others v Chairman, National Land Commission & 5 others (Civil Appeal 17 of 2017) [2020] KECA 432 (KLR)", Case Analysis (2020). Not stated in judgment (Court of Appeal, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/432/eng@2020-08-07

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