Samuel Njoroge Gitukui & 4 Others v Attorney General & another [2017] KEELC 1299 (KLR)
The bottom line
#Kenya's Environment and Land Court quashed the National Land Commission's order against private landowners because it had no power over private titles and never heard them.
What this practically means
#Executive summary
#Key legal issues
#Whether the National Land Commission acted in excess of jurisdiction under Section 14 of the National Land Commission Act
Yes - Section 14 empowers the Commission to review grants or dispositions of public land only, not privately owned freehold titles, and boundary determination is reserved for the Land Registrar.
The court examined Section 14(1) of the National Land Commission Act and held it empowers the Commission to review grants or dispositions of public land. The suit parcels were privately owned freehold property. Boundary delineation disputes fall exclusively within Sections 16, 17, 18 and 19 of the Land Registration Act, which vest that mandate in the Land Registrar. By purporting to re-survey private property boundaries, the Commission exceeded its statutory mandate.
Whether the applicants were denied a fair hearing contrary to the rules of natural justice
Yes - the applicants were condemned unheard in breach of audi alteram partem and Section 14(3) of the National Land Commission Act.
Section 14(3) enjoins the Commission to give persons affected an opportunity to appear and inspect documents, and to determine only after hearing the parties. The Respondents alleged compliance but did not file submissions or exhibits demonstrating that the applicants were heard. Being condemned unheard breaches natural justice and vitiates the decision, warranting certiorari.
Whether the threshold for the grant of an order of certiorari was met
Yes - the decision was made in excess of jurisdiction and in breach of natural justice, both recognised grounds for certiorari.
Applying Kenya National Examination Council v Republic Exparte Geoffrey Gathenji, certiorari issues where a decision is made without or in excess of jurisdiction or where rules of natural justice are not complied with. Both defects were established: excess of jurisdiction and denial of a hearing. The application dated 2nd February 2017 was therefore merited.
Legal principles established
#- Judicial review is concerned with the decision-making process, not the merits of the decision
- A quasi-judicial body must accord persons affected by its decisions an opportunity to be heard; failure to do so is a ground for certiorari
- The mandate to hear and arbitrate boundary disputes is exclusively reserved for the Land Registrar under the Land Registration Act
Court orders
#- 1.Judgment entered in favour of the exparte Applicants in terms of prayers no.2 and 4 of the Notice of Motion dated 2nd February 2017, i.e. an order of certiorari quashing the decision of the National Land Commission made on 4th August 2016
- 2.Costs of the proceedings awarded to the exparte Applicants against the Respondents and interested parties
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court/Environment and Land Court; Articles 40, 47 and 60 of the Constitution; Section 14 of the National Land Commission Act No.4 of 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Njoroge Gitukui & 4 Others v Attorney General & another [2017] KEELC 1299 (KLR)", Case Analysis (2017). Judicial Review No.4 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1299/eng@2017-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.