Republic v National Land Commission & Bernard K Njau and another (sued on behalf of Kimathi Estate Welfare Association) Exparte Registered Trustees Fellowship of Believers; County Government of Nairobi & 2 others (Interested Parties) [2019] KEELC 1428 (KLR)
The bottom line
#A Nairobi church lost its bid to overturn the National Land Commission's revocation of its title because the land was reserved for public use.
What this practically means
#Executive summary
#Key legal issues
#Whether the Commission failed to give the ex-parte applicant a fair hearing
The Commission did not deny the ex-parte applicant a fair hearing; counsel attended, participated, obtained the complaint and documents she had requested, and the Commission was not obliged to analyse every submission individually
The court perused the Commission's proceedings and found that the ex-parte applicant's counsel, Mrs Kimani, attended and made representations on 11/2/2015, raising non-supply of documents. The Commission directed that the documents be shared. It was common ground that notices were published and the applicant came across them. The court held that a body reviewing fifteen public purpose plots need not analyse each and every submission for each plot; the determination dealt with the substance of the matter, so there was no breach of Article 47 or Section 4 of the Fair Administrative Action Act.
Whether the Commission violated Article 47(2) of the Constitution by failing to give written reasons
There was no breach of Article 47(2); the Commission specified the subject of review, invited representations and rendered a signed written determination
The court found that the Commission published notices inviting participation, and rendered a determination duly signed by its Chairman, Dr Muhammed Swazuri, exhibited as Annexure MK5. That determination set out the reasons for the revocation of the titles. On the evidential materials before the court, the written-reasons requirement of Article 47(2) was met and the impugned decision could not be quashed for want of reasons.
Whether the Commission violated Section 15(3)(b) of the National Land Commission Act by admitting a claim that was sub judice
The Commission properly admitted and processed the complaint; the cited court cases had been withdrawn and the applicant did not demonstrate a proper basis for the Commission to decline jurisdiction
The applicant's written submissions to the Commission were a two-page document without annexures; copies of pleadings in the alleged pending suits were not annexed. The 2nd respondent's evidence that the cases were withdrawn was uncontroverted. The court's perusal of the original record in Nairobi ELC No 474 of 2008 showed a notice of withdrawal filed on 18/9/2009 and the suit marked withdrawn on 23/9/2009, so the sub judice objection was not bonafide.
Whether the Commission's determination failed to identify the impropriety or illegality in the ex-parte applicant's title
The illegality was clearly identified: the suit property was reserved for a public purpose (a public day nursery school) and was not available for allocation to private individuals
The court noted the suit property was one of fifteen titles under review, all reserved for various public purposes. The Commission's determination expressly captured the basis of the finding at paragraph 5 on page 4, namely that the parcels were reserved for public purposes and not available for allocation to private individuals. The property had been set aside for a public day nursery within Kimathi Estate, and the applicant's lease could not legitimize the alienation.
Legal principles established
#- A decision-making body need not analyse each and every submission made before it so long as it deals with the substance of the matter; failure to expressly analyse submissions does not of itself amount to denial of a fair hearing
- Where an administrative body affords a party an opportunity to participate and make representations and takes those representations into account, the requirements of a fair hearing under Article 47 and the Fair Administrative Action Act are satisfied
Court orders
#- 1.The ex-parte applicant's notice of motion dated 13/10/2017 seeking orders of certiorari and prohibition is dismissed for lack of merit
- 2.The ex-parte applicant shall bear costs of the suit
- Jurisdiction invoked
- Judicial review jurisdiction under Article 47 of the Constitution and Order 53 of the Civil Procedure Rules; review of administrative action of the National Land Commission under Articles 67 and 68(c)(v) and Sections 14 and 15 of the National Land Commission Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission & Bernard K Njau and another (sued on behalf of Kimathi Estate Welfare Association) Exparte Registered Trustees Fellowship of Believers; County Government of Nairobi & 2 others (Interested Parties) [2019] KEELC 1428 (KLR)", Case Analysis (2019). Judicial Review Motion dated 13/10/2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1428/eng@2019-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.