Eastern Bypass Developers Limited v National Land Commission & 3 others [2019] KEELC 1378 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the National Land Commission had jurisdiction over a dispute concerning private land
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
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.
Whether the Applicant was denied a fair hearing and natural justice
No violation; the Applicant was represented, participated in hearings on several dates and never objected to the Commission's jurisdiction
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.
Whether the prerogative orders of Certiorari and Mandamus ought to issue
The application failed; no illegality, irrationality or procedural impropriety was established warranting judicial review relief
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.
Legal principles established
#- 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
#- 1.The Notice of Motion application dated 7th February 2018 is dismissed entirely
- 2.Costs to the Respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.