Diocese of Eldoret Trustees (Registered) v National Land Commission & 2 others [2016] KEELC 982 (KLR)
The bottom line
#Kenya's land court confirmed a church's title was invalid because the land was public school property, but the National Land Commission acted unconstitutionally by revoking it without a hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the petitioner was afforded a fair hearing before revocation of its title
No; the petitioner was not afforded a fair hearing, and the 1st respondent's failure to reply left the allegations uncontroverted.
Article 47 guarantees fair administrative action and Article 50 a fair hearing. The National Land Commission, though served, filed no replying affidavit, so the petitioner's sworn allegations of not being notified or heard were uncontroverted. The 2nd respondent's attempt to show the petitioner was heard could not be relied on since it is an interested party, not an officer of the Commission. Adequate notice before the hearing was not demonstrated, and the right to be heard is cardinal.
Whether the suit land is public or private land
It is public land, reserved for a public secondary school; the petitioner's title was unlawfully acquired.
The land was purchased by the Government from settler D. Craig, and the subdivision placed public utility plots including the secondary school (Plot No. 70). The petitioner's name does not appear in the list of allottees, and no registered gift to the petitioner was proved. Under Articles 61 and 62 the land transferred to the State by sale remained public land. Sections 24, 25 and 26 of the Land Registration Act protect a proprietor only where title was legally acquired, which the petitioner failed to demonstrate.
Whether the petitioner should have filed judicial review or a plaint instead of a petition
No; the remedies sought were founded on infringement of the right to property and were properly brought by petition under Article 22.
The remedies sought were based on infringement of the right to property under Chapter Four (Bill of Rights). Article 22 grants every person the right to institute court proceedings claiming a right or fundamental freedom has been denied, violated or infringed or threatened. The Chief Justice, pursuant to Articles 22(3) and 23 and Article 165(3), made rules (Gazette Supplement No. 95, Legislative Supplement No. 47) prescribing the petition format, so a petition was the correct mode.
Whether sections 3, 6 and 14 of the National Land Commission Act can be applied retrospectively
Yes; Article 68(c)(v) empowered Parliament to enact retrospective land law, and section 14 allows review of grants including those predating the 2012 Act and the 2010 Constitution.
Every statute is prima facie prospective unless expressly or by necessary implication retrospective. Section 14(1) affects vested rights but is anchored on Article 68(c)(v), which empowered Parliament to enact retrospective law on land for review of grants or dispositions of public land. Section 14(5) permits the Commission, on finding a title unlawfully acquired, to direct revocation, including of dispositions made before the Constitution, Land Act, Land Registration Act and NLC Act came into force.
Legal principles established
#- A registered title is protected only if lawfully and procedurally acquired; it is not enough to wave a title deed to establish ownership.
- Section 14 of the National Land Commission Act, 2012, pursuant to Article 68(c)(v) of the Constitution, permits review of grants of public land made even before the promulgation of the 2010 Constitution.
- Allegations of denial of a fair hearing by a public body that fails to file a replying affidavit stand uncontroverted.
- Revocation of title effected without affording the owner a hearing amounts to unconstitutional deprivation of property.
Court orders
#- 1.A declaration that the respondents' actions amount to deprivation of property without due process and are illegal and unconstitutional (the decision to revoke the petitioner's title being tainted with procedural impropriety)
- 2.Dismissal of the prayers for a permanent injunction and for a declaration that the petitioner is the rightful owner of Kiplombe/Kiplombe Block 5(Kaptich)/70, with no order as to costs
- 3.That the suit property, being public land, shall be registered in the name of the Principal Secretary, Ministry of Education, in trust for Craig Secondary School, a public school
- Jurisdiction invoked
- Article 22 and Article 23 read with Article 165(3) of the Constitution of Kenya 2010 (enforcement of Bill of Rights); rules made by the Chief Justice thereunder
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Diocese of Eldoret Trustees (Registered) v National Land Commission & 2 others [2016] KEELC 982 (KLR)", Case Analysis (2016). Petition (amended on 30.4.2015) – number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/982/eng@2016-04-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.