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ELCAllowedChamber Summons dated 18/12/2017 (Judicial Review)· [2018] KEELC 4580 (KLR)

Republic v National Land Commission & Chief Land Registrar Ex-parte Placid View Properties Limited [2018] KEELC 4580 (KLR)

High Court of Kenya
9 February 2018
926 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court blocked a National Land Commission attempt to revoke a hotel owner's title because the Commission never gave the owner a hearing first.

What this practically means

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Executive summary

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Placid View Properties Limited, the registered proprietor of L.R. No. 209/12367 and L.R. No. 209/12148 (on which the Ole Sereni Hotel stands), applied by Chamber Summons under Order 53 Rules 1 and 2 of the Civil Procedure Rules for leave to apply for an order of certiorari quashing Gazette Notice No. 6862 Table 16 S/No.14 published by the National Land Commission on 17/7/2017, and for that leave to operate as a stay. The applicant claimed it acquired the properties in 2006 and 2007, built the hotel, and was then confronted with complaints by Indian Spray Painters Limited and the Kenya National Highways Authority of encroachment. It attended a hearing fixed for 18/4/2017 before the 1st respondent but was told the matter was taken off the list; thereafter, without any hearing or notification, the respondent published the Gazette Notice initiating revocation of its title. The court (Eboso J) framed two issues: whether an arguable case for certiorari was made out, and whether stay should be granted. Relying on the settled purpose of the leave stage and the Court of Appeal's decision in Uwe Meixner, the court found the complaint - revocation of title without a hearing, contrary to Articles 47 and 50 of the Constitution - was not frivolous. Applying proportionality and the circumstances that a world-class hotel contributing to tourism and foreign exchange occupied the land, the court granted leave to operate as stay. Prayers 2 and 3 were granted with costs in the cause.

Key legal issues

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01

Whether the applicant made out an arguable case for leave to apply for certiorari

Holding

Leave granted; the complaint that the respondent moved to revoke the applicant's title without a hearing was not frivolous

Reasoning

The applicant alleged that the National Land Commission initiated revocation of its title via Gazette Notice without any hearing, having taken the matter out of the hearing list. The court held that the right to a fair hearing is constitutionally protected under Articles 47 and 50, and that a decision made without affording a hearing is arguable. The intended motion was therefore not frivolous and leave was warranted.

p. 2
02

Whether leave should operate as a stay of the Gazette Notice

Holding

Yes; stay granted on proportionality and the unique circumstances, given the hotel on the suit land

Reasoning

The court applied the principle of proportionality, taking into account the unique circumstances. A world-class hotel sat on the suit lands, contributing to foreign exchange earnings and tourism. If the revocation process proceeded and the hotel were demolished, the applicant would suffer immensely. On that basis the court found the case called for stay of the impugned Gazette Notice pending the substantive motion.

p. 2

Legal principles established

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  • The purpose of leave proceedings in judicial review is to filter out frivolous or hopeless applications and to ensure only arguable cases proceed to substantive hearing
  • A party must be accorded a fair hearing before any adverse decision is made against it, per Articles 47 and 50 of the Constitution

Court orders

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  1. 1.Leave granted to the ex-parte applicant to bring a substantive motion for an order of certiorari quashing Gazette Notice No. 6862 Table 16 S/No.14 published by the respondent on 17/7/2017 in respect of Land Ref. No. 209/12367 Nairobi
  2. 2.Leave to operate as a stay of the impugned Gazette Notice pending hearing and determination of the substantive motion
  3. 3.Costs in the cause
Jurisdiction invoked
Order 53 Rules 1 and 2 of the Civil Procedure Rules - leave to apply for judicial review (orders of certiorari and stay)

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, "Republic v National Land Commission & Chief Land Registrar Ex-parte Placid View Properties Limited [2018] KEELC 4580 (KLR)", Case Analysis (2018). Chamber Summons dated 18/12/2017 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4580/eng@2018-02-09

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