Benson Wekesa Milimo v National Land Commission & 2 others [2018] KEELC 3487 (KLR)
The bottom line
#The Environment and Land Court dismissed a landowner's attempt to stop eviction, ruling the real issue was an ordinary boundary dispute that judicial review could not fix.
What this practically means
#Executive summary
#Key legal issues
#Whether the eviction notice and related proceedings violated the applicant's rights to fair hearing, natural justice and property under Articles 40, 47 and 50 of the Constitution
No violation was established. The applicant was notified of the boundary dispute proceedings, responded through his Advocate, and squandered the opportunity to attend the boundary determination; he was treated fairly.
The respondent did not sit in a quasi-judicial capacity over the applicant; the proximate proceedings were the County Land Registrar's boundary determination and the County Surveyor's report. The applicant was served with notice of the boundary dispute and responded through his advocate, so was formally notified of the case against him. Having failed to attend, he could not claim denial of natural justice. No proceedings questioned the validity of his title to parcel 66.
Whether the dispute was properly the subject of judicial review rather than a boundary/ownership dispute
The dispute is an ordinary boundary dispute finally resolved by the Land Registrar; the judicial review orders should not have been sought.
The court found the applicant's case fatally defective because he failed to establish any legal claim to Plot 354, whose existence was proved by uncontroverted certificates of official search. The matter was an ordinary boundary dispute resolved by the Registrar, and the respondent, managing public land, acted as a complainant, not a quasi-judicial tribunal. Certiorari and prohibition cannot issue against it.
Whether the applicant's encroachment on public utility land could found a constitutional claim to protection of property under Article 40
Article 40 does not protect property illegally obtained; the applicant's occupation of Plot 354, being unexplained, must be deemed illegal.
The applicant produced no evidence of how his occupation of the 1.4 hectares comprising Plot 354 came into being. Against the uncontroverted evidence of the respondent and interested parties that the parcel is public land reserved since 1985, his occupation must be deemed illegal, and Article 40 frowns upon illegally obtained property.
Whether the applicant's failure to disclose material facts at the ex parte stage affected his claim
The court found a considerable lack of candour by the applicant, who failed to disclose material facts relevant to the dispute.
The court invoked the principle that applications for judicial review must be made with full disclosure of all material available to the claimant, and that ex parte orders obtained by disguise or camouflage may be set aside. It found a considerable measure of lack of candour in the applicant's framing of the case as one without prior proceedings.
Legal principles established
#- Judicial review concerns the decision-making process, not the merits of the decision; a court cannot substitute its opinion for that of the authority constituted by law
- A party seeking judicial review must establish legal rights affected by the actions of a quasi-judicial or administrative body acting in excess of legal authority
- A body merely laying claim to public land it manages, without sitting in a quasi-judicial capacity, is in the position of a complainant and its actions are not amenable to judicial review
- Failure to respond to sworn allegations in a replying affidavit means the court must treat those statements as undisputed and correct
Court orders
#- 1.Vacation of the orders of stay granted on 13th October 2017 (prayers 1, 2 and 3 of the Chamber Summons dated 29/9/2017)
- 2.Dismissal of the Notice of Motion dated 23/10/2017
- 3.Costs of the application awarded to the Respondent and the interested parties
- Jurisdiction invoked
- Judicial review jurisdiction of the Environment and Land Court over the National Land Commission's notice of eviction (originally filed at the Constitutional and Judicial Review Division, Nairobi, JR Misc. No. 600 of 2017, transferred to the ELC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benson Wekesa Milimo v National Land Commission & 2 others [2018] KEELC 3487 (KLR)", Case Analysis (2018). Miscellaneous Civil Application No. 600 of 2017 (JR), as transferred to the Environment and Land Court at Kitale (Judicial Review Notice of Motion dated 23/10/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3487/eng@2018-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.