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ELCAllowedJudicial Review Application (Notice of Motion dated 4th October 2018, filed 8th October 2018)· [2019] KEELC 1478 (KLR)

Republic v Land Settlement Fund Board of Trustees; Tom Ayatta & 3 others exparte [2019] KEELC 1478 (KLR)

Environment and Land Court
17 September 2019
GOG.M.A. Ongondo
1,329 words in judgment
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The bottom line

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Kenya's Environment and Land Court blocked the eviction of a family from their ancestral land because the National Land Commission failed to follow fair, lawful eviction procedures.

What this practically means

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Executive summary

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By a notice of motion dated 4th October 2018 filed under Order 53 Rule 3(1) of the Civil Procedure Rules, 2010, with leave granted on 17th September 2018, four ex-parte applicants sought an order of prohibition directed at the National Land Commission barring their eviction from approximately 1.6 hectares of land parcel Kanyada/Kanyabala/1343 (on which their homesteads and farms stand) unless a subdivision first divided the parcel between them and Lala Secondary School, and an order of mandamus compelling the Land Settlement Fund Board Trustees to pay them adequate and prompt compensation before requiring them to vacate, or alternatively to surrender the 1.6 hectares to them. The applicants claimed ancestral occupation since the 1930s, a voluntary ex-gratia gift of part of the land to the school by their father in 1967, and registration of the parcel in favour of South Nyanza County Council in 1979 without regard to their overriding occupancy rights. The respondent, though duly served, filed no reply, and the application proceeded on written submissions. The court held that judicial review concerns process rather than merits, that the intended eviction was unprocedural and illegal under section 152A of the Land Act, and that the eviction notice was insufficient because the applicants were not heard on its effects. It found the eviction violated the applicants' rights to fair administrative action, dignity and protection of property under Articles 47, 28 and 40 of the Constitution, and granted prohibition, mandamus and costs as sought.

Key legal issues

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01

Whether the intended eviction by the NLC violated the applicants' constitutional rights

Holding

Yes - the intended eviction violated the applicants' rights to fair administrative action, dignity and protection of property under Articles 47, 28 and 40 of the Constitution

Reasoning

The court considered the applicants' long occupation since the 1930s, the registration of the land in favour of South Nyanza County Council without compensation to the occupants, and the provisions of the Land Registration Act and section 152A of the Land Act. It found the eviction notice did not comply with statutory requirements and the applicants were not heard on its likely effects.

p. 2
02

Whether the eviction notice issued by the NLC amounted to sufficient notice

Holding

No - the notice was insufficient as the applicants were not heard on its likely effects

Reasoning

Relying on Sceneries Ltd v National Land Commission, the court held that an eviction notice must afford affected persons an opportunity to be heard on its effects. The notice issued by the NLC did not satisfy this requirement, rendering the intended eviction unprocedural.

p. 2

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision
  • The burden of proof remains on the plaintiff even where a case proceeds by formal proof or is unchallenged
  • An eviction not in accordance with section 152A of the Land Act is unprocedural and illegal

Court orders

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  1. 1.Order of prohibition directed at the National Land Commission prohibiting eviction of the applicants from the 1.6 hectare portion of Kanyada/Kanyabala/1343 until a subdivision is conducted, one portion registered in favour of the applicants and the other in favour of the school
  2. 2.Order of mandamus directed at the Land Settlement Fund Board Trustees compelling payment of adequate and prompt compensation to the persons occupying the 1.6 hectares before requiring them to vacate, or alternatively surrender of the 1.6 hectares back to the applicants
  3. 3.Costs awarded to the applicants

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 53 Rule 3(1)
  • Land Actsections 152(A), 152(F)(1) & (2) and 98
  • Constitution of Kenya, 2010Articles 27(1), 40(1), 47, 28 and 40
  • Land Registration Actsections 24, 25, 26 and 28

Cases cited (5)

  • Ibrahim Sangor Osman -Vs- Minister of State for Provincial Administration and Internal Security
    [2011] eKLR (Constitutional Petition No. 2 of 2011)
  • Kenya Re-Insurance Corporation -Vs- National Land Commission
    [2018] eKLR
  • Republic v Kenya Revenue Authority ex-parte Yaya Tours Ltd
    (2008) eKLR
  • Sceneries Ltd v National Land Commission
    (2017) eKLR
  • Kirugi & another v Kabiya & 3 others
    (1987) eKLR
Jurisdiction invoked
Judicial review jurisdiction under Order 53 Rule 3(1) of the Civil Procedure Rules, 2010, pursuant to leave granted on 17th September 2018

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 Land Settlement Fund Board of Trustees; Tom Ayatta & 3 others exparte [2019] KEELC 1478 (KLR)", Case Analysis (2019). Judicial Review Application (Notice of Motion dated 4th October 2018, filed 8th October 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1478/eng@2019-09-17

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