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ELCAllowedJudicial Review (Notice of Motion dated 5th March, 2018)· [2018] KEELC 1304 (KLR)

Kenya Re-Insurance Corporation v National Land Commission [2018] KEELC 1304 (KLR)

High Court of Kenya
15 October 2018
CYC. Yano
3,561 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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Kenya's High Court quashed a National Land Commission eviction notice because the landowner was never properly notified or heard before it was issued.

What this practically means

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Executive summary

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Kenya Reinsurance Corporation Limited, the registered owner of Land Reference Number MN/1/9141 Shanzu, moved the High Court by way of judicial review seeking to quash an eviction notice dated 19th January, 2018 issued and published by the National Land Commission, together with any publications, proceedings or decisions culminating in it, and to prohibit the Commission from conducting any further hearing, review or action over the property. The Applicant asserted it was allotted the land in 1993, registered in 1997, and had enjoyed quiet possession, but was never notified of, or invited to, any proceedings resulting in the eviction notice. The Respondent opposed, arguing that judicial review does not lie against the merits, that the Applicant was heard, and that it had jurisdiction under the Land Act and the National Land Commission Act. The court confined itself to the decision-making process, not the merits of the title. It held that the publication of only the land reference number in a local daily did not constitute adequate notice; that no notice or details of the complaint were served on the Applicant; that the failure to be heard violated natural justice, Article 47 and Article 50 of the Constitution; and that a decision given in breach of natural justice is void. The court further found that the Commission, empowered only to investigate and recommend redress, had purported to make a determination revoking the title. Certiorari and prohibition were granted and costs were awarded to the Applicant.

Key legal issues

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01

Whether publication of the land reference number in a local daily constituted adequate notice

Holding

It did not; publication of only the land reference number in a local newspaper did not constitute sufficient notice to the affected registered proprietor.

Reasoning

The court held that natural justice requires that a person whose rights will be affected by a decision must receive prior notice of the facts on which the decision is based. The notice must be timely, adequately describe the relevant facts and allegations, and enable the party to respond. Publishing only the land reference number in a local daily failed to meet this standard and amounted to a violation of the rules of natural justice.

p. 4
02

Whether the Respondent exceeded its mandate in purporting to revoke the applicant's title

Holding

Yes; the Respondent is mandated to investigate and recommend appropriate redress, but purported to render 'a determination' revoking the applicant's title, which exceeded its function.

Reasoning

Article 67(2)(e) of the Constitution and Section 5 of the National Land Commission Act mandate the Commission to investigate present or historical land injustices and recommend appropriate redress. In the impugned notice, the Respondent purported to render a determination revoking the title, rather than a recommendation, thereby exceeding its statutory function.

p. 4
03

Whether the Applicant's constitutional property rights were protected absent a finding of unlawful acquisition

Holding

Property rights under Article 40 are protected, and under Article 40(6) they can only be defeated where property has been found to have been unlawfully acquired - a finding which had not been made.

Reasoning

The court noted that Article 40(6) provides that the protections of Article 40 do not extend to property found to have been unlawfully acquired. The crucial words are 'found to have been unlawfully acquired', meaning there must be a valid finding of unlawful acquisition before property rights can be defeated. No such finding had been made against the Applicant, whose title was registered.

p. 3

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision itself.
  • A registered proprietor's title cannot be revoked without affording the proprietor an opportunity of being heard.
  • A decision given without observing the principles of natural justice is void.
  • Failure to give proper notice is itself a denial of natural justice and of fairness.

Court orders

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  1. 1.An order of certiorari quashing the Notice of eviction issued by the National Land Commission dated 19th January, 2018 in respect of Land Reference Number MN/1/9141 Shanzu
  2. 2.An order of certiorari quashing any and/or all publications, proceedings and/or decisions of the National Land Commission preceding and culminating in the Notice of eviction dated 19th January, 2018
  3. 3.An order of prohibition forbidding the National Land Commission, its agents, employees or any other persons acting on its instructions from conducting any hearing, review or action in respect of Land Reference Number MN/1/9141 Shanzu
  4. 4.The costs of the suit to be borne by the Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 40(3), 40(6), 47, 50, 50(2)(k), 67(2)(e), 68(c)(v), 165(6) & (7)
  • Law Reform Act Cap 26Sections 8 & 9
  • Civil Procedure RulesOrder 53 Rule 3
  • National Land Commission Act No. 5 of 2012Sections 5, 6, 14
  • Land Registration ActSection 24
  • Land ActSections 152A, 152B, 152C

Cases cited (4)

  • Municipal Council of Mombasa –v- Republic & Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
  • Republic –v- Kenya Revenue Authority ex-parte Yaya Towers Limited
    (2008) eKLR
  • Ex-parte Samuel Githigi Mbugua & 5 Others
    (2018) eKLR
  • Sceneries Limited –v- National Land Commission
    (2017) eKLR
Jurisdiction invoked
Articles 165(6) & (7) of the Constitution; Sections 8 & 9 of the Law Reform Act Cap 26; Order 53 Rule 3 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "Kenya Re-Insurance Corporation v National Land Commission [2018] KEELC 1304 (KLR)", Case Analysis (2018). Judicial Review (Notice of Motion dated 5th March, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1304/eng@2018-10-15

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