Republic v National Land Commission & another Ex - parte Hellen Kemunto Obaga [2018] KEELC 3438 (KLR)
The bottom line
#Kenya's High Court confirmed that the National Land Commission cannot revoke a land title or overrule a court decision without giving the owner a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Scope of judicial review
Judicial review examines the propriety of the decision-making process, not the merits, and was properly invoked by the applicant to scrutinise the Commission's process.
The court, relying on Republic v NTSA ex parte James Maina Mugo and Municipal Council of Mombasa v Republic, held that judicial review is concerned with jurisdiction, fair hearing and relevant considerations, not merits. The applicant properly invoked it to challenge the process by which her title was revoked.
Mandate to review grants absent Section 14(2) rules
The absence of rules under Section 14(2) NLC Act did not divest the Commission of its constitutional mandate; the issue was whether parties were treated fairly.
Following Compar Investment Ltd, the court held the lack of rules cannot oust the Commission's constitutional mandate under Article 67 and Section 14(1). The applicant did not plead with precision how the absence of rules prejudiced her; the exercise turned on fair treatment of parties.
Jurisdiction over property already adjudicated by the High Court
The 1st respondent acted without jurisdiction by revoking a title already dealt with by the High Court in Kisii Misc. Application No. 30 of 2010.
The High Court ruling by Sitati J had quashed the earlier revocation by the Commissioner of Lands, the Commission's predecessor. The Commission, aware of the ruling, proceeded without mentioning it, effectively over-ruling the High Court, which it could not do.
Violation of Article 47 fair administrative action
The Commission violated natural justice and Article 47 by not disclosing the complaint, complainant's identity, or affording the applicant an opportunity to respond.
The applicant was never supplied with details of the complaint or given a chance to face and cross-examine the complainant. The Commission exercised a quasi-judicial function and was bound by Article 47, Article 50 and the Fair Administrative Action Act. The unrebuted evidence established a breach of natural justice.
Legal principles established
#- The National Land Commission cannot review or overrule a decision already made by the High Court on the same subject matter; such action is without jurisdiction.
- A decision arrived at in breach of the rules of natural justice is ultra vires, null and void.
- Judicial review concerns the decision-making process, not the merits of the decision itself.
Court orders
#- 1.A Judicial Review Order of Prohibition prohibiting the respondents from revoking the applicant's registration as lessee of Kisii Municipality/Block III/282 or interfering with her possession and ownership
- 2.A Judicial Review Order of Certiorari quashing the 1st respondent's decision to revoke the applicant's leasehold interest contained in Gazette Notice Number 6862 dated 17th July 2017
- 3.Costs of the application awarded to the applicant
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court under the Constitution and order of leave granted by Munyao Sila, J. on 8th September 2017 for Certiorari and Prohibition
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission & another Ex - parte Hellen Kemunto Obaga [2018] KEELC 3438 (KLR)", Case Analysis (2018). Judicial Review Miscellaneous Application (substantive Notice of Motion dated 11th September 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3438/eng@2018-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.