Benson Wekesa Milimo v National Land Commission & 2 others [2021] KECA 970 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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.
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.
Whether the right to fair administrative action under Article 47 was violated
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.
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.
Whether the learned Judge properly exercised his discretion in refusing judicial review
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.
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.
Legal principles established
#- 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
#- 1.Appeal allowed
- 2.Judgment of the Environment and Land Court set aside
- 3.Orders substituted allowing the notice of motion dated 31st October 2017
- 4.Orders of certiorari and prohibition issued against the Commission's decision as sought in the motion
- 5.Costs of the suit in the High Court and of the appeal awarded to Benson against the respondents jointly
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Flow Farm Limited v Organics 4 Orphans International (Thrive For Good East Africa) (Environment and Land Case E034 of 2025) [2026] KEELC 806 (KLR)[2026] KEELC 806 (KLR)18 Feb 2026applied
- Mbarak v Mwachibua & 32 others (Environment & Land Miscellaneous Case E052 of 2024) [2025] KEELC 1015 (KLR)[2025] KEELC 1015 (KLR)5 Mar 2025
- Mbarak v Mwachibua & 32 others (Environment & Land Miscellaneous Case E052 of 2024) [2025] KEELC 1015 (KLR)[2025] KEELC 1015 (KLR)5 Mar 2025applied
Cite this brief
#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.