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ELCDismissedConstitutional Petition filed 9th June 2017· [2019] KEELC 1544 (KLR)

Samuel Kimondo Theuri v Mohammed Swazuri & another; Ruiru Sports Club(Intersted Party) [2019] KEELC 1544 (KLR)

Environment and Land Court
26 August 2019
2,886 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The court upheld the National Land Commission's decision to redirect a Sh71.5 million land compensation payout to Ruiru Sports Club, ruling the buyer was not an innocent purchaser.

What this practically means

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Executive summary

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The Petitioner, formerly registered owner of LR No. 122/7 Ruiru (about 30 acres), sought compensation after 15 acres were compulsorily acquired for the Nairobi-Thika Super Highway, the total award being Kshs.71,486,990/-. Before payment, the Interested Party, Ruiru Sports Club, which claimed the land had been unlawfully excised from its LR No. 122/4, obtained an injunction in Nairobi HCCC No. 2127 of 2007 and complained to the National Land Commission. The NLC conducted a review, found the vendors had acquired the land unlawfully from the club, and published Gazette Notice No. 9742 of 25th November 2016 deleting the Petitioner's name and substituting the club as the party entitled to compensation. The Petitioner petitioned, contending violations of Articles 40(3) and 47(1) and (2), and sought certiorari to quash the NLC decision and injunctions restraining payment to and receipt by the club. The court framed five issues and held: that the NLC had jurisdiction to review grants of land originally public under section 14(1) of the National Land Commission Act, applying the Holbron Properties decision; that the Petitioner's rights were not violated since he was represented at the inquiry by Mr. Stephen Gachie and could not claim bona fide purchaser protection under section 14(7) having bought with knowledge of pending litigation; that the decision-making process was fair and rational and could not be quashed; and that no injunction could issue. The petition was dismissed with costs to the Respondents and the Interested Party.

Key legal issues

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01

Jurisdiction of the NLC to review the grant over the suit property

Holding

The NLC had jurisdiction because the land was initially public land later registered in private names, and the review was properly undertaken

Reasoning

The suit property was originally public land allocated to the club, later registered in the names of the vendors and transferred to the Petitioner. Section 14(1) of the National Land Commission Act empowers the NLC to review all grants or dispositions of public land, including parcels converted to private land. The review was conducted after public advertisements and applied to land already compulsorily acquired, to identify the rightful owner for compensation. The court adopted the holding in the Holbron Properties case.

p. 3
02

Violation of Articles 40(3) and 47(1) and (2) of the Constitution

Holding

No violation; the Petitioner was not a bona fide purchaser for value without notice and was represented in the NLC inquiry by Advocate Stephen Gachie

Reasoning

The Petitioner's rights to compensation were not violated because the NLC found the title had been unlawfully excised from the club's land, and section 14(7) protection was unavailable since he purchased with knowledge of pending litigation. On fair administrative action, the NLC determination showed he was represented by an advocate during the inquiry, so he was afforded a hearing and could not claim he was condemned unheard. Written reasons were also captured in the NLC determination.

p. 4
03

Whether the NLC decision culminating in Gazette Notice No. 9742 should be quashed

Holding

No; the decision-making process was fair and the decision was arrived at through logical reasoning

Reasoning

Judicial review concerns itself with the decision-making process, not the merits. The Petitioner was represented before the NLC and afforded a hearing. The court found the decision logical and not irrational, and therefore not amenable to quashing.

p. 4
04

Whether injunctive orders restraining compensation payments should issue

Holding

No injunction could issue since the club had been gazetted as owner and the Petitioner's vendors obtained the land fraudulently

Reasoning

Having found the suit property unlawfully excised from the club's land and the club gazetted as owner, there was no basis to restrain the NLC from processing compensation or the club from receiving it. The Petitioner's knowledge of pending litigation defeated any claim to equitable relief.

p. 4

Legal principles established

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  • The NLC's power under section 14(1) of the National Land Commission Act to review grants extends to land converted from public land to private land, even after compulsory acquisition
  • Section 14(7) of the National Land Commission Act does not protect a purchaser who bought with notice of pending litigation challenging the vendor's title

Court orders

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  1. 1.The petition is dismissed with costs to the Respondents and the Interested Party

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 24
  • Constitution of Kenya, 2010Article 40(3)
  • Constitution of Kenya, 2010Article 47(1) and (2)
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 67(2)
  • Constitution of Kenya, 2010Article 40(b)
  • National Land Commission ActSection 14(1)
  • National Land Commission ActSection 14(7)
  • Land Actnot specified

Cases cited (1)

  • Republic -Vs- National Land Commission Ex-parte Holbron Properties Limited
    [2016] eKLR
Jurisdiction invoked
Original constitutional petition jurisdiction (Articles 40, 47 of the Constitution of Kenya, 2010)

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, "Samuel Kimondo Theuri v Mohammed Swazuri & another; Ruiru Sports Club(Intersted Party) [2019] KEELC 1544 (KLR)", Case Analysis (2019). Constitutional Petition filed 9th June 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1544/eng@2019-08-26

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