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ELCPartially AllowedRepublic v National Land Commission, Ex-parte Lesmat Limited (notice of motion dated 26/2/2019)· [2019] KEELC 1233 (KLR)

Republic v National Land Commission Ex-Parte: Lesmat Limited [2019] KEELC 1233 (KLR)

High Court of Kenya (judicial review)
15 October 2019
4,283 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The High Court quashed the National Land Commission's decision to revoke a private landowner's title because the Commission lacked jurisdiction over private land and never gave the owner notice.

What this practically means

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Executive summary

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Lesmat Limited sought judicial review orders of certiorari and prohibition against the National Land Commission's decision, gazetted as Gazette Notice No. 11714 of 9 November 2018, directing the review and revocation of its title to land measuring approximately 123.3 Ha (LR. Nos. 22930/22353) and vesting it in a state ministry. The applicant, which had purchased the land in 1989 with Agricultural Finance Corporation financing and discharged the charge, contended it was never served with notice of the review proceedings and that the Commission lacked jurisdiction over private land. The motion was unopposed; the respondent filed no reply or submissions despite proof of service. The court framed two issues: violation of natural justice and want of jurisdiction. It found the applicant's uncontroverted evidence established that it was never given notice or a hearing, holding that publication in national dailies is not proper notice, following Sceneries Ltd and Mwangi Stephen Mureithi. On jurisdiction, it held that land which has acquired private status under Articles 62 to 64 of the Constitution falls outside the Commission's Section 14 review power, which is confined to public land, following the Ex-parte Cecilia Chepkoech Leting decision; only the Environment and Land Court may investigate such title. Although the gazette notice only recommended revocation rather than effecting it, the court granted prayers 1 to 4 - certiorari quashing the impugned decision and prohibitions against any hearing, review, revocation or implementation - and declined prayer 5 (a declaration) for want of leave. The respondent was ordered to bear the costs.

Key legal issues

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01

Whether the rules of natural justice were violated

Holding

Yes - the applicant was never served with notice or given the opportunity to be heard before the determination affecting its property rights.

Reasoning

The court applied Article 50 and Article 47 of the Constitution and Section 14(3) of the National Land Commission Act, which requires notice. The gazette notice asserted that all interested parties had been invited by public notice in the national dailies, but the respondent filed nothing to prove such advertisements. Following Sceneries Ltd and Mwangi Stephen Muriithi, publication of land reference numbers in a daily is not proper notice. The uncontroverted affidavit evidence established the violation.

p. 5
02

Whether the respondent had jurisdiction over the suit land

Holding

No - the land was private land, and the National Land Commission's review power under Article 68(c)(v) and Section 14(1) of the NLC Act extends only to public land.

Reasoning

The documentary evidence showed the land was purchased from William Morogo Saina, who was already registered proprietor of the mother parcel, with AFC financing, charges and discharges. The private status predated the applicant's registration. Relying on Ex-parte Cecilia Chepkoech Leting, jurisdiction over private land title legality vests in the Environment and Land Court, not the Commission.

p. 6
03

Whether the Commission's decision effected revocation of title or merely recommended it

Holding

The gazette notice only recommended revocation by directing the Chief Land Registrar, so it did not effect immediate final revocation - but this did not save the decision given the natural justice and jurisdiction defects.

Reasoning

The court noted the authorities relied on (Robert Mutiso Lelli, Magnate Ventures) for the proposition that only the Registrar may revoke titles, but observed the impugned notice merely directed the Chief Land Registrar to effect revocation. Nevertheless, having found breaches of natural justice and want of jurisdiction, the motion succeeded.

p. 6

Legal principles established

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  • Natural justice applies mandatorily regardless of any statutory provision.
  • Where land has acquired the status of private land, only the Environment and Land Court has jurisdiction to investigate and determine the legality of its title, not the National Land Commission.
  • A tribunal must adduce evidence that notice was issued; in the absence of a replying affidavit, the court cannot presume notice was given.

Court orders

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  1. 1.Certiorari to quash the respondent's decision gazetted as Gazette Notice No. 11714 of 9/11/2018 (and related gazette notices and proceedings) directing review and revocation of title to LR. Nos. 22930/22353
  2. 2.Prohibition prohibiting the respondent from conducting any hearing, review or revocation of title of the applicant's property
  3. 3.Prohibition prohibiting the respondent from implementing its decision to revoke the applicant's title and ownership of the property
  4. 4.The respondent to bear the costs of the proceedings
  5. 5.Prayer 5 (declaration) declined as leave for it was not obtained

Authorities

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Legislation

  • Constitution of KenyaArticle 68(c)(v)
  • Constitution of KenyaArticle 40(1), 40(2), 40(6)
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticles 62, 63, 64
  • National Land Commission ActSection 14(1), (3), (4), (5), (6), (7), (8)

Cases cited (7)

  • Sceneries Ltd -vs- National Land Commission
    [2017] eKLR
  • Mwangi Stephen Mureithi -vs- National Land Commissioner & 3 Others
    [2018] eKLR
  • Republic -vs- National Land Commission Ex-parte, Cecilia Chepkoech Leting & 3 Others
    [2016] eKLR
  • Choitram vs. Mystery Model Hair Salon
    [1972] EA 525
  • Gullamhussein Sunderji Virji vs. Punja Lila and Another
    HCMCA No. 9 of 1959 [1959] EA 734
  • Robert Mutiso Lelli and Cabin Crew Investments Ltd -vs- National Land Commission & 3 Others
    [2017] eKLR
  • Republic -vs- National land Commission and 2 Others Ex-parte Magnate Ventures Ltd
    [2018] eKLR
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules (fair hearing under Article 47 and Article 50 of the Constitution engaged)

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 Ex-Parte: Lesmat Limited [2019] KEELC 1233 (KLR)", Case Analysis (2019). Republic v National Land Commission, Ex-parte Lesmat Limited (notice of motion dated 26/2/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1233/eng@2019-10-15

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