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ELCDismissedNairobi Judicial Review Misc Civil Application (Chamber Summons) dated 6/12/2017· [2017] KEELC 534 (KLR)

Aftraco Limited v National Land Commission & 3 others [2017] KEELC 534 (KLR)

High Court of Kenya
19 December 2017
1,513 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court ruled that parties disputing a compulsory land acquisition must first use the National Land Commission inquiry process before rushing to court.

What this practically means

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Executive summary

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Aftraco Limited, the ex parte applicant, sought leave by chamber summons dated 6/12/2017 to bring a substantive judicial review motion seeking certiorari to quash Kenya Gazette Notice No. 9534 of 29/9/2017, prohibition orders against the National Land Commission (NLC) and the Attorney General, and an order that leave operate as a stay of the Gazette Notice. The impugned notice announced the Government's intention to compulsorily acquire LR 84988/8 (later corrected by corrigenda to LR 7656), registered in the name of Telkom Kenya Limited, for 'jua kali' operations in Nairobi City County. Aftraco claimed it had contracted in 2011 to purchase the property for KShs 1,520,000,000 and that pending arbitral proceedings on ownership of the property would be subverted by the acquisition, which it contended was instigated by Exclusive Estates Limited and undertaken without jurisdiction. Counsel for the respondents and interested parties opposed the stay, pointing to the corrigenda, the public purpose test for eminent domain, the NLC inquiry mechanism and Section 115 of the Land Act for preserving disputed compensation. The court, applying the arguable case test for leave, held the application premature: Section 115 contemplates ownership disputes during compulsory acquisition, and the proper forum is the Section 112 inquiry where the applicant may ventilate its claim, seek preservation of compensation and challenge the legality of the acquisition purpose. Leave was declined with no order as to costs and the file was marked as disposed.

Key legal issues

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01

Whether leave for judicial review of the Gazette Notice was premature

Holding

The application for leave was premature; the applicant must first exhaust the statutory remedies under Sections 112 to 115 of the Land Act before approaching the court

Reasoning

The court found Section 115 of the Land Act contemplates disputes over beneficial ownership of compulsorily acquired land and provides for preservation of compensation money pending determination. A claimant is entitled to appear before the NLC inquiry under Section 112, ventilate its claim, urge preservation of compensation, and raise legality and constitutionality of the acquisition purpose. Judicial review would only be available if aggrieved by any decision taken within that statutory framework.

p. 3
02

Test for grant of leave in judicial review

Holding

Leave is discretionary and granted where an arguable case is made out, serving to weed out frivolous, vexatious or hopeless applications

Reasoning

The court adopted the general test that the applicant must demonstrate an arguable case warranting leave, citing Uwe Meixner & Another v Attorney General. The requirement for leave functions as a filter to eliminate frivolous, vexatious or hopeless judicial review applications and ensures only arguable cases proceed to substantive consideration.

p. 3

Legal principles established

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  • Grant or refusal of leave in judicial review is an exercise of judicial discretion; the test is whether the applicant has made out an arguable case
  • The forum for a party claiming an interest in land under compulsory acquisition is the inquiry under Section 112 of the Land Act, where claims to compensation and objections to the purpose of acquisition may be raised
  • Section 115 of the Land Act provides a framework for preserving compensation money where there is a dispute over beneficial ownership of land being compulsorily acquired

Court orders

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  1. 1.The Chamber Summons dated 6/12/2017 is declined with no order as to costs
  2. 2.In the absence of any other formal request, the suit is marked as disposed and the case file closed

Authorities

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Legislation

  • Land ActSection 2 (definition of 'public purpose')
  • Land ActSection 112
  • Land ActSections 112 to 115
  • Land ActSection 115
  • Constitution of Kenya, 2010doctrine of eminent domain (constitutional and statutory framework regulating compulsory acquisition)

Cases cited (1)

  • Uwe Meixner & Another v Attorney General
    (2005) eKLR
Jurisdiction invoked
Judicial review jurisdiction of the High Court (leave stage under the Law Reform Act / Civil Procedure - chamber summons for leave to apply for orders of certiorari and prohibition)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Aftraco Limited v National Land Commission & 3 others [2017] KEELC 534 (KLR)", Case Analysis (2017). Nairobi Judicial Review Misc Civil Application (Chamber Summons) dated 6/12/2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/534/eng@2017-12-19

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