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ELCDismissedMiscellaneous 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)· [2018] KEELC 3487 (KLR)

Benson Wekesa Milimo v National Land Commission & 2 others [2018] KEELC 3487 (KLR)

Environment and Land Court
20 March 2018
4,340 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Ex parte applicant, the registered owner of LR No. Trans-Nzoia/Sinyerere/66 measuring 10.6 hectares purchased in 2014, sought certiorari to quash an eviction notice issued by the National Land Commission on 27 July 2017 in respect of Plot 354, Sinyerere Settlement Scheme, and prohibition restraining the Commission from any action over the land. He argued he was never heard in any proceedings ordering his eviction, that the notice breached natural justice, was ultra vires and violated his constitutional rights to property and fair administrative action under Articles 40, 47 and 50 of the Constitution, Sections 24, 25 and 26 of the Land Registration Act and the Fair Administrative Actions Act. The respondent and the interested parties (Sitatunga Secondary School and its Board secretary) admitted the applicant's ownership of parcel 66 but maintained that parcel 354 (1.4 hectares) was public land reserved since 1985, registered under the Settlement Fund Trustees and allocated to the school by the District Development Committee; a boundary determination by the County Land Registrar and a County Surveyor's report found the applicant had encroached on parcel 354. The court framed two issues: whether the motion revealed a violation of rights warranting judicial review, and what orders should issue. It found the applicant's case fatally defective: he claimed no legal interest in plot 354, denied its very existence against uncontroverted certificates of search, failed to reply to the sworn evidence, and squandered the opportunity to be heard at the boundary determination. The Commission, acting as manager of public land on the Registrar's findings, was in the position of a complainant and not a quasi-judicial decision-maker amenable to judicial review. The dispute was an ordinary boundary dispute. The court vacated the stay granted on 13 October 2017, dismissed the motion and awarded costs to the respondent and the interested parties.

Key legal issues

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01

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

Holding

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.

Reasoning

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.

p. 4
02

Whether the dispute was properly the subject of judicial review rather than a boundary/ownership dispute

Holding

The dispute is an ordinary boundary dispute finally resolved by the Land Registrar; the judicial review orders should not have been sought.

Reasoning

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.

p. 5
03

Whether the applicant's encroachment on public utility land could found a constitutional claim to protection of property under Article 40

Holding

Article 40 does not protect property illegally obtained; the applicant's occupation of Plot 354, being unexplained, must be deemed illegal.

Reasoning

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.

p. 4
04

Whether the applicant's failure to disclose material facts at the ex parte stage affected his claim

Holding

The court found a considerable lack of candour by the applicant, who failed to disclose material facts relevant to the dispute.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.Dismissal of the Notice of Motion dated 23/10/2017
  3. 3.Costs of the application awarded to the Respondent and the interested parties

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(1), 40(2)(1), 40(2)(3), 47(1), 47(2), 50(1), 65(4), 67(2)(e)
  • Land Registration ActSections 24(a), 25(1), 26(1)
  • Fair Administrative Actions Act, 2015Sections 4, 6
  • National Land Commission Act, 2012Sections 6(2), 15(9)

Cases cited (27)

  • The Chairman Land Disputes Tribunal - Uriri Division Migori District & Another Exparte Charles Okinyi Oloo (suing as Legal Rep. of the Estate of Richard Oloo Oketch (Deceased)
    [2017] eKLR
  • Sceneries Limited -vs- National Land Commission
    [2017] eKLR
  • Republic -vs- National Land Commission & 2 Others Exparte Airways Holdings Limited
    [2015] eKLR
  • Republic -vs- National Land Commission & 2 Others Exparte Cecilia Chepkoech Leting & 3 Others
    [2016] eKLR
  • Linus Nganga Kiongo & 3 Others -vs- Town Council of Kikuyu
    [2012] eKLR
  • John Kaberia Lichoro -vs- M'Mwereria M'Ithiria & 3 Others
    [2012] eKLR
  • Isaac Gathungu Wanjohi And Another Versus The Attorney General And 6 Others
    [Petition 154 Of 2011] EKLR
  • Samuel Kamere Vs Lands Registrar Kajiado
    Civil Appeal No 28 Of 2005
  • R Vs Public Procurement Administrative Review Board & 2 Others Ex Parte Sanitam Services EA Ltd
    2013 EKLR
  • Municipal Council Of Mombasa Vs The Republic & Umoja Consultants Ltd
    Civil Appeal No 185 Of 2001
  • Sanghani Investments Ltd Vs Officer In Charge Nairobi Remand And Allocation Prison
    2007 eKLR
  • Seventh Day Adventist Church Limited Vs Permanent Secretary Ministry of Nairobi Metropolitan Development And Another
    Judicial Review Case No 112 Of 2011
  • Redcliff Holdings Limited Versus The Registrar Of Titles & Others
    2017 EKLR
  • HTV ltd vs Price Commissions
    [1976] ICR 170
  • Western Fish Products Ltd Vs Penwith District Council & Another
    1981 2 ALL ER 204
  • Peter Bogonko Versus National Environment Management Authority
    2006 EKLR
  • Maritime Electric Co Ltd Vs General Dairies Ltd
    QB 227
  • Republic Versus Judicial Service Commission Ex Parte Pareno
    2004 1 KLR 203
  • Republic Versus County Assembly Of Nakuru Ex Parte Samuel Waithuku Njane & 21 Others
    JR 19 Of 2016
  • Kenya National Examinations Council Vs Geoffrey Gathenju Njoroge
    CA No 266 Of 1996
  • Republic Versus Kenya National Commission On Human Rights, Ex Parte Uhuru Muigai Kenyatta
    2010 EKLR
  • Republic Vs Minister For Agriculture & 2 Others Ex Parte Equatorial Nuts Processors Ltd And 3 Others
    2013 EKLR
  • Republic v President & 7 others Ex parte Wilfrida Itolondo & 4 others
    [2014] eKLR
  • Republic vs. Kenya Revenue Authority Ex parte Yaya Towers Limited
    [2008] eKLR
  • Republic v Independent Electoral and Boundaries Commission (I.E.B.C.) Ex parte National Super Alliance (NASA) Kenya & 6 others
    [2017] eKLR, Judicial Review No. 378 of 2017
  • Republic vs. Kenya National Federation of Co-Operatives Limited ex Parte Communications Commission of Kenya
  • R Vs Electricity Commissioners Board
    1924 1 KB 171
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.