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ELCDismissedJudicial Review Application, Notice of Motion dated 7th February 2018· [2019] KEELC 1378 (KLR)

Eastern Bypass Developers Limited v National Land Commission & 3 others [2019] KEELC 1378 (KLR)

High Court of Kenya
4 October 2019
3,066 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 upheld the National Land Commission's power to revoke a fraudulently acquired private land title, dismissing the landowner's challenge with costs.

What this practically means

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Executive summary

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Eastern Bypass Developers Ltd sought judicial review orders of Certiorari to quash a National Land Commission decision of 28th April 2017 revoking its title to Dagoretti/Kinoo/279, and Mandamus to restrain the Chief Land Registrar from revoking the title and reinstating it to the 4th Respondent, Daniel Njuguna Murathe. The Applicant argued the suit land was private land over which the Commission had no mandate, and that it was denied a fair hearing. The Commission, through Brian Ikol, asserted jurisdiction under Sections 5(1) and 14 of the National Land Commission Act, showing that the 4th Respondent had complained of a fraudulent transfer and that review hearings were held on several dates with the Applicant represented. The 2nd and 3rd Respondents filed Grounds of Opposition, including that the application was time-barred under Order 53 Rule 2. The 4th Respondent maintained he never sold the land and noted a related criminal case in Kiambu. The Court, applying Municipal Council of Mombasa v Umoja Consultants, confined itself to the process rather than the merits. It found the Commission had jurisdiction under Section 5(1)(e) to investigate a present land injustice arising from fraudulent registration, and that it complied with Section 14(3) by giving notice and a hearing, making its determination under Section 14(5). No illegality, irrationality or procedural impropriety was established. The Notice of Motion dated 7th February 2018 was dismissed entirely with costs to the Respondents.

Key legal issues

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01

Whether the National Land Commission had jurisdiction over a dispute concerning private land

Holding

The Commission had jurisdiction under Section 5(1)(e) of the National Land Commission Act to investigate a complaint of fraudulent registration as a present land injustice

Reasoning

Article 67 establishes the Commission and Section 5(1)(e) empowers it to investigate complaints into present or historical land injustices and recommend redress. The fraudulent registration of the 4th Respondent's parcel was a present land injustice. The Court, following Ledidi Ole Tauta, held the Commission acted within its mandate in hearing the complaint and making its determination.

02

Whether the Applicant was denied a fair hearing and natural justice

Holding

No violation; the Applicant was represented, participated in hearings on several dates and never objected to the Commission's jurisdiction

Reasoning

Section 14(3) of the National Land Commission Act requires notice and opportunity to appear, which was complied with. Hearings were held on 19th August, 9th September, 30th September and 28th October 2016 with the Applicant represented by Mr. Ndegwa, who submitted to the jurisdiction without objection. The Applicant was not condemned unheard.

p. 4
03

Whether the prerogative orders of Certiorari and Mandamus ought to issue

Holding

The application failed; no illegality, irrationality or procedural impropriety was established warranting judicial review relief

Reasoning

Applying the Pastoli threshold, the Applicant had to show illegality, irrationality or procedural impropriety. The Court found none: the Commission acted within its statutory mandate and accorded procedural fairness. The Applicant also failed to file submissions. The Notice of Motion was therefore dismissed with costs.

p. 4

Legal principles established

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  • Judicial review concerns the decision-making process, not the merits of the decision
  • A body without jurisdiction cannot determine any matter before it
  • The National Land Commission has mandate under Section 5(1)(e) to investigate complaints of present or historical land injustice and recommend redress
  • Where the Commission finds a title was acquired unlawfully, it may direct the Registrar to revoke the title under Section 14(5) of the National Land Commission Act

Court orders

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  1. 1.The Notice of Motion application dated 7th February 2018 is dismissed entirely
  2. 2.Costs to the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 67 (including 67(2)(e) and 67(3))
  • Constitution of Kenya, 2010Article 40
  • National Land Commission ActSection 5(1)(e)
  • National Land Commission ActSections 14(1), 14(3), 14(5)
  • Civil Procedure RulesOrder 53 Rule 2

Cases cited (6)

  • Municipal Council of Mombasa vs R & Umoja Consultants Ltd
    Nairobi Civil Appeal No.185 of 2001 (2002)eKLR
  • Pastoli vs Kabale District Local Government Council & Others
    (2008) 2 EA 300
  • Council of Civil Service Union vs Minister for the Civil Service
    [1985] AC 2
  • Francis Bahikirwe Muntu & Others vs Kyambogo University
    High Court, Kampala, Miscellaneous Application Number 643 of 2005 (UR)
  • The Owners of the Motor Vessel 'Lilian S' vs Caltex Oil (Kenya) Ltd
    1989 KLR 1
  • Ledidi Ole Tauta & Others vs Attorney General & 2 Others
    (2015)eKLR
Jurisdiction invoked
Judicial review jurisdiction over administrative action of the National Land Commission; Articles 67 and 40 of the Constitution and the National Land Commission Act 2012

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, "Eastern Bypass Developers Limited v National Land Commission & 3 others [2019] KEELC 1378 (KLR)", Case Analysis (2019). Judicial Review Application, Notice of Motion dated 7th February 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1378/eng@2019-10-04

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