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ELCPartially AllowedNot stated in judgment· [2019] KEELC 962 (KLR)

Shazmeer Enterprises Limited v National Land Commissioner [2019] KEELC 962 (KLR)

Environment and Land Court
31 October 2019
CYC.K. Yano
4,804 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court voided a National Land Commission eviction notice because the landowner was never given notice, a hearing, or reasons before it was issued.

What this practically means

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Executive summary

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The Petitioner, the registered leasehold owner of MOMBASA/MAINLAND SOUTH/BLOCK I/1829 and MOMBASA/MS/BLOCK I/1674, petitioned the Environment and Land Court at Mombasa challenging a notice published by the National Land Commission in the Star Newspaper of 23rd January 2018 requiring it to vacate the suit properties within 90 days on the ground that its occupation was illegal and interfering with ship navigational aids leading into and out of the port of Kilindini. The Petitioner sought declarations that the notice and the underlying determination were null and void, certiorari to quash the notice, a permanent injunction, compensatory damages and costs, contending that the Commission's powers extend only to public land, that the Section 14 review window under the NLC Act had lapsed, and that the notice violated Articles 40, 47 and 50 of the Constitution. The Respondent opposed, asserting jurisdiction under Sections 152A-152C of the Land Act and contending the notice concerned different parcel numbers and that the petition was imprecise. The court framed two issues: jurisdiction and due process. It held the Commission had jurisdiction to investigate under Article 67(2)(e) and (f), but that it failed to follow due process: it did not gazette the decision or announce it by radio as Section 152C of the Land Act requires, and it denied the Petitioner notice, a hearing and written reasons contrary to Section 14 of the NLC Act, Article 47 and the rules of natural justice. The petition was allowed in terms of prayers (a), (b), (c) and (f); damages and the injunction were refused because the eviction had not occurred. Costs were awarded to the Petitioner.

Key legal issues

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01

Whether the National Land Commission had jurisdiction to issue the notice to vacate

Holding

The Commission had jurisdiction - under Article 67(2)(e) and (f) of the Constitution it may initiate investigations into land injustices on its own motion or upon complaint, and the notice disclosed complaints from the Kenya Maritime Authority and inspections of the sites

Reasoning

Article 67(2)(e) and (f) empower the Commission to investigate present or historical land injustices on complaint or its own motion and to monitor land use planning. The notice disclosed complaints from the Kenya Maritime Authority and site inspections confirming interference with ship navigational aids. That sufficed to found jurisdiction to investigate and issue the impugned notice. The challenge therefore succeeded not on want of jurisdiction but on failure to follow due process.

p. 4
02

Whether the Respondent followed due process in issuing the notice

Holding

The Respondent did not follow due process - it failed to publish the decision in the Kenya Gazette and announce it by radio as required by Section 152C of the Land Act, failed to give the Petitioner notice and an opportunity to appear under Section 14 of the NLC Act, and gave no reasons or findings of its investigation

Reasoning

The impugned notice was an administrative action triggering Article 47 and Section 4 of the Fair Administrative Action Act. Section 14 of the NLC Act requires notice to every interested person and an opportunity to appear before any determination, and Section 152C of the Land Act requires gazettement and radio announcement at least three months before eviction. The Respondent filed no replying affidavit and no findings were supplied. The hearing requirement was breached, rendering the decision null and void.

p. 5
03

Whether the Petitioner's constitutional rights were violated

Holding

Yes - the right to property under Article 40 and the rights to fair administrative action and fair hearing under Articles 47 and 50 were infringed by the procedurally defective and unlawful notice

Reasoning

The Petitioner is the registered proprietor of the suit properties and Article 40 protects that property right. There was no evidence before the court that the properties were unlawfully acquired. The decision to require vacation was made without jurisdiction or legal backing and in breach of the rules of natural justice, so all action pursuant to it was null and void, amounting to a violation of the Petitioner's constitutional rights.

p. 5

Legal principles established

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  • Where a party has not been heard, a decision made in breach of the rules of natural justice is null and void ab initio
  • An administrative action adversely affecting rights requires prior notice, an opportunity to be heard and written reasons under Article 47 of the Constitution and the Fair Administrative Action Act

Court orders

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  1. 1.A declaration that the notice published in the Star Newspaper of 23rd January 2018 requiring the Petitioner to vacate the suit properties is invalid, null and void ab initio, unlawful and ultra vires the Respondent's powers
  2. 2.A declaration that the Respondent's determination that the Petitioner is in illegal and/or unlawful occupation of the suit properties is null and void ab initio, unlawful and ultra vires
  3. 3.An order of Certiorari to remove into the Environment & Land Court and quash the notice published in the Star Newspaper of 23rd January 2018
  4. 4.Costs to the Petitioner (prayer (f) granted)

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(1), 40(3), 47, 50(1), 62, 64, 67(2)(e) and (f), 67(3), 68(c)(iv) and (v)
  • National Land Commission ActSection 3(b), Section 6, Section 14
  • Land Act, 2012Sections 11, 12(2), 131, 151, 152A, 152B, 152C, 155
  • Fair Administrative Action ActSection 4

Cases cited (17)

  • Anarita Karimi Njeru –v- The Republic
    (1976 – 1980) KLR 1272
  • Krystalline Salt Limited –v- The National Land Commission
    (2016) eKLR
  • Sceneries Limited –v- The National Land Commission
    (2017) eKLR
  • Republic –v- National Land Commission and 3 Others ex-parte Vivo Energy Kenya Limited (Formerly B.P. Kenya Limited)
    (2015) eKLR
  • Republic –v- National Land Commission & Tropical Treasure Limited ex parte Krystalline Salt Limited
    (2015) eKLR
  • Robert Mutiso Lelli and Cabin Crew Investments Ltd –v- National Land Commission & 3 Others
    (2017) eKLR
  • Japeth Asegele –v- Chief Land Registrar and 3 Others
    (2018) eKLR
  • Petrol Oil Kenya Limited –v- Kenya Urban Roads Authority
    (2018) eKLR
  • Kenya Re-insurance Corporation –v- National Land Commission
    (2018) eKLR
  • Isaiah Otiato & 6 Others –v- County Government of Vihiga
    (2018) eKLR
  • Isaac Fula Siaka –v- County Government of Kakamega & 2 Others
    (2018) eKLR
  • Mumo Matemu –v- Trusted Society of Human Rights Alliance and Others
    Nairobi Civil Appeal No.990 of 2012
  • Peninah Nadako Kilishwa –v- Independent Electoral Boundaries Commission (IEBC) and 2 Others
    (2015) eKLR
  • Municipal Council of Mombasa –v- Republic & Umoja Consultants Ltd
    Civil Appeal No.185 of 2001
  • Pastoli –v- Kabale District Local Government Council & Others
    (2008) 2 EA 300-301
  • Kenya National Examination Council –v- Republic Ex Parte Geoffrey Gathenji Njoroge & 9 Others
    (1997) eKLR
  • Onyango Oloo –v- Attorney General
    (1989) EA 456
Jurisdiction invoked
Environment and Land Court jurisdiction over petitions concerning land, including orders of certiorari; constitutional petition under Articles 40, 47, 50, 62, 64, 67 and 68 of the Constitution

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, "Shazmeer Enterprises Limited v National Land Commissioner [2019] KEELC 962 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/962/eng@2019-10-31

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