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ELCDismissedPetition Case No. 25 of 2017 (formerly Pet. No. 6 of 2016)· [2018] KEELC 830 (KLR)

Hadija Sheila Barwaka Hussein v National Land Commission [2018] KEELC 830 (KLR)

Environment and Land Court of Kenya
14 November 2018
2,399 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed the National Land Commission can review private titles that originated from public land, and dismissed a landowner's challenge.

What this practically means

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Executive summary

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The Petitioner, Hadija Sheila Barwaka Hussein, petitioned the Environment and Land Court at Kisumu claiming that the National Land Commission (NLC) had unconstitutionally revoked her title to Kisumu Municipality/Block II/121 without notice or a fair hearing. She sought declarations of contravention of Articles 40 and 47, certiorari to quash the revocation, a permanent injunction restraining the NLC, damages, costs and interest. She had bought the property from Plantex Limited in 2008, which had been allotted it in 1996 from unsurveyed industrial plot in Kisumu. The NLC opposed, saying it acted on a complaint from the Permanent Secretary, Ministry of Fisheries Development, that the parcel had been illegally carved out of ministry land earmarked for the Fisheries Department; a review hearing held on 23 April 2014 proceeded without the Petitioner, who was to be contacted later. The court framed six issues. It held that the NLC's review power under Section 14 of the National Land Commission Act extends to private land emanating from public land, which the suit property undoubtedly was. It found no evidence that any revocation decision had been made; the burden of proving revocation lay on the Petitioner under Section 107 of the Evidence Act and was not discharged, so there was no decision capable of quashing. The NLC's letter of 29 May 2013 was issued in exercise of its statutory and constitutional duty and did not infringe the Petitioner's rights. The petition was dismissed with costs to the NLC.

Key legal issues

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01

Scope of the National Land Commission's review mandate under Section 14 of the National Land Commission Act

Holding

The review power extends to private land that originated from public land; the suit property, allotted in 1996 from unsurveyed public land, falls within that mandate.

Reasoning

The court considered decisions cited by both counsel and concurred that the Commission may review grants of private land emanating from public land, and may recommend revocation where the allocation was irregular. Since the suit property originated from an allotment of unsurveyed industrial plot in Kisumu, its origins from public land were undeniable, placing it within Section 14 review.

p. 3
02

Whether the Petitioner's title was revoked

Holding

No revocation decision was proved; the Petitioner bore the burden under Section 107 of the Evidence Act and produced no evidence of revocation.

Reasoning

The review hearing of 23 April 2014 record showed the Petitioner had not turned up and was to be contacted again; there was no evidence of a subsequent hearing, invitation or resolution. The Petitioner's official searches did not confirm revocation. Certiorari could therefore not issue as there was no decision to quash.

p. 4
03

Whether the Petitioner's constitutional rights were infringed

Holding

No infringement; the Respondent's letter of 29 May 2013 was issued in the exercise of its statutory and constitutional duty.

Reasoning

The letter merely summarised the complaint from the Permanent Secretary, Ministry of Fisheries Development, sought the Petitioner's response and requested suspension of dealings pending determination. That was a lawful exercise of the Commission's investigative mandate, not a breach of Articles 40 and 47.

p. 5

Legal principles established

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  • The National Land Commission's power to review grants or dispositions under Section 14 of the National Land Commission Act extends to private land that emanated from public land.
  • Where the Commission finds privately registered land emanating from public land was unlawfully allocated, it may recommend revocation to the Registrar; where allocation was lawful and the land is needed for public use, it may be compulsorily acquired.
  • The burden of proving revocation of title lies on the party alleging it, under Section 107 of the Evidence Act.

Court orders

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  1. 1.The petition is dismissed with costs to the Respondent.

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 19, 20, 21, 22, 23, 24, 40, 47, 67, 68 (incl. 67(2), 68(c)(v), 40(1), 40(2)(a), 40(3)(b)(i), 47(1) and (2), 23(3)(e))
  • Registered Land ActCap 300 (now repealed)
  • Land ActNo. 2 of 2012
  • National Land Commission ActNo. 5 of 2012, Sections 13 and 14 (incl. 14(3))
  • Evidence ActSection 107, Chapter 80 of the Laws of Kenya

Cases cited (5)

  • Republic vs National Land Commission & 4 Others exparte Fulson Company Limited
    [2015] eKLR
  • Republic vs National Land Commission Exparte Krystalline Salt Limited
    [2015] eKLR
  • Republic vs National Land Commission & Another Exparte Muktar Saman Olow
    [2015] eKLR
  • Republic vs National Land Commission exparte Holborn Properties Limited
    [2016] eKLR
  • Belgo Holdings Limited vs National Commission & Another
    [2017] eKLR
Jurisdiction invoked
Articles 19, 20, 21, 22, 23, 24, 40, 47, 67 and 68 of the Constitution of Kenya 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Hadija Sheila Barwaka Hussein v National Land Commission [2018] KEELC 830 (KLR)", Case Analysis (2018). Petition Case No. 25 of 2017 (formerly Pet. No. 6 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/830/eng@2018-11-14

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