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Court of AppealAllowedCivil Appeal No. 56 of 2018· [2021] KECA 970 (KLR)

Benson Wekesa Milimo v National Land Commission & 2 others [2021] KECA 970 (KLR)

Court of Appeal
19 February 2021
5,553 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that the National Land Commission cannot lawfully evict anyone without first issuing a show-cause notice and offering a hearing.

What this practically means

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Executive summary

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The appellant, registered proprietor of LR No. Trans-Nzoia/Sinyerere/66, received a 90-day eviction notice dated 27th July 2017 from the National Land Commission purporting to evict him from public plot No. 354 Sinyerere Settlement Scheme, which the Commission claimed belonged to Sitatunga Secondary School. He sought certiorari and prohibition in the Environment and Land Court, arguing the notice was issued without inquiry, reasons or a hearing. The learned Judge (Mwangi Njoroge, J) dismissed the application as fatally defective, holding the dispute was a boundary dispute resolved by the County Land Registrar and that the Commission had not sat in a quasi-judicial capacity over the appellant. The Court of Appeal allowed the appeal. It held that the Judge misdirected himself by focusing on the status and ownership of the land rather than the procedural propriety of the notice, thereby conducting a merit review in judicial review proceedings. The Court held that even assuming unlawful occupation of public land, section 155 of the Land Act mandatorily required the Commission to first serve a notice to show cause informing the person of the right to be heard before an eviction notice could issue; the Commission had not demonstrated compliance. The Court further found that the failure to give reasons or a hearing violated the appellant's right to fair administrative action under Article 47 of the Constitution and the Fair Administrative Action Act, and that the subsequent boundary dispute proceedings could not cleanse the defective procedure. The Court set aside the judgment below, allowed the motion, and issued certiorari and prohibition, with costs to the appellant.

Key legal issues

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01

Whether the Commission's eviction notice was a decision subject to judicial review and whether due process under section 155 of the Land Act was followed

Holding

The notice was a decision affecting Benson's possession and was issued without the mandatory prior notice to show cause and opportunity to be heard required by section 155 of the Land Act; due process was not followed.

Reasoning

Section 155 of the Land Act requires the Commission, before issuing an eviction notice, to first serve a notice to show cause which must inform the person of the right to be heard. Only after the person fails to show cause may an eviction notice issue. The Commission did not demonstrate compliance with these provisions. Its notice determined Benson's occupation of the disputed land, so the Commission acted in a quasi-judicial capacity notwithstanding the absence of a hearing obligation under section 152C.

p. 7
02

Whether the right to fair administrative action under Article 47 was violated

Holding

Yes. The Commission gave no reasons for the proposed eviction and no opportunity to be heard, violating Article 47 and section 4 of the Fair Administrative Action Act.

Reasoning

Article 47 guarantees administrative action that is lawful, reasonable and procedurally fair, including prior adequate notice of the reasons for proposed action and an opportunity to be heard. The Commission did not give Benson reasons for the eviction nor a hearing, and sought to justify the notice through subsequent boundary dispute proceedings, which could not cure the procedural defect. These breaches were sufficient grounds for the judicial review orders.

p. 7
03

Whether the learned Judge properly exercised his discretion in refusing judicial review

Holding

No. The Judge misdirected himself by focusing on the status and ownership of the land instead of the procedural propriety of the eviction notice, thereby conducting a merit review.

Reasoning

Benson was not claiming plot 354 Sinyerere; he challenged the notice on procedural grounds and on the ground that it targeted his private land. The Judge framed the pivotal issue as the status of the land, relied on post-notice boundary findings, and attempted to resolve encroachment - a merits question he was not positioned to decide. He also erred in finding that the boundary dispute had been resolved, contrary to the County Land Registrar's own conclusion.

p. 6

Legal principles established

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  • Before the National Land Commission can serve an eviction notice on a person occupying public land, it must first serve a notice to show cause informing the person of the right to be heard; failure to follow that procedure renders the eviction notice unlawful and liable to be quashed.
  • Judicial review is concerned with the procedural propriety of an impugned administrative decision, not its merits; a court that converts a judicial review application into a merit-based land ownership claim misdirects itself.
  • Subsequent proceedings cannot cure a procedurally defective administrative decision; a boundary dispute process undertaken after an eviction notice was issued could not validate a notice issued without prior hearing.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the Environment and Land Court set aside
  3. 3.Orders substituted allowing the notice of motion dated 31st October 2017
  4. 4.Orders of certiorari and prohibition issued against the Commission's decision as sought in the motion
  5. 5.Costs of the suit in the High Court and of the appeal awarded to Benson against the respondents jointly

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 62(2)
  • Constitution of Kenya, 2010Article 67
  • National Land Commission ActSection 5
  • National Land Commission ActSection 14
  • Land ActSection 152
  • Land ActSections 152A, 152B, 152C, 152D, 152F
  • Land ActSection 155
  • Land Laws (Amendment) Act, 2016Section 98
  • Fair Administrative Action ActSection 4

Cases cited (2)

  • Francis Karioko Muruatetu vs Republic & 5 Others
    [2016] eKLR
  • David Oloo Onyango, vs Attorney General
    [1987] eKLR
On appeal from
Environment and Land Court
E.L.C. (JR) No. 1 of 2017
Jurisdiction invoked
First appeal against judgment of the Environment and Land Court in a judicial review application

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Benson Wekesa Milimo v National Land Commission & 2 others [2021] KECA 970 (KLR)", Case Analysis (2021). Civil Appeal No. 56 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/970/eng@2021-02-19

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