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ELCPartially AllowedJudicial Review Miscellaneous Application (Notice of Motion dated 9th November 2017)· [2019] KEELC 2236 (KLR)

Republic v National Land Commission & another; Pacifica Mwango[Interested party] Ex parte A. Jiwa Shamji Limited [2019] KEELC 2236 (KLR)

High Court of Kenya
19 July 2019
4,186 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court quashed the National Land Commission's decision to revoke a land title because the owner was never properly notified or given a fair hearing.

What this practically means

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Executive summary

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The Ex parte Applicant, Shamji, obtained title to land parcel Kisii Municipality/Block III/157 through a public auction by the chargee in exercise of its statutory power of sale, and was registered as owner on 2nd December 1998. Following a complaint by the Interested Party, Pacifica Mwango, the National Land Commission conducted a review hearing at Kisumu on 5th October 2016 and, by Gazette Notice of 17th July 2017, recommended that the Registrar revoke the Applicant's title and vest the land in the Interested Party as administrator of her late father's estate. The Applicant sought judicial review orders of prohibition and certiorari, contending it was never served with the complaint, the particulars, or notice of the hearing. The Commission maintained that notice and service were effected through letters, a public notice and an affidavit of service. The court, confining itself to the decision-making process rather than the merits, held that the notices did not disclose the allegations against the Applicant, the letter and complaint did not name the Applicant, the affidavit of service was deficient in detail, and the hearing notice was too short; the process amounted to trial by ambush and violated Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act. The court allowed the Motion, quashing the Gazette Notice to the extent it affected the suit parcel and prohibiting revocation of the Applicant's title, with costs to the Applicant.

Key legal issues

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01

Jurisdiction and mandate of the National Land Commission to review grants over privately held land

Holding

The Commission was empowered under Article 67(2) of the Constitution and Section 14 of the National Land Commission Act to review dispositions of public land including titles privately held where initially public land

Reasoning

The court traced the Commission's functions to Article 67(2) and Section 14 of the National Land Commission Act, 2012, and approved the Holborn Properties decision confirming that the Commission may review privately held titles that were initially public land, to ascertain whether they were properly and legally acquired. The challenge therefore did not succeed on jurisdiction.

p. 4
02

Whether the Applicant was afforded a fair hearing under Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act

Holding

The Applicant was not given valid service or adequate notice of the allegations; the recommendation to revoke its title was made without a fair hearing and was unsustainable

Reasoning

The letters and public notices did not disclose particulars of the complaint and did not name the Applicant; the affidavit of service was deficient, lacking details of who was served, how and where, and the hearing notice was too short. Subjecting the Applicant to such a process was 'trial by ambush' and breached Article 47(1) and Section 4 of the Fair Administrative Action Act, vitiating the recommendation to revoke the title.

p. 5

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision itself
  • An administrative body proposing to revoke a title must give the affected party prior and adequate notice of the nature and reasons for the action and particulars of the allegations; a deficient notice and affidavit of service amount to no valid service
  • No revocation of title shall be effected against a bona fide purchaser for value without notice of a defect in the title (Section 14(7) National Land Commission Act)

Court orders

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  1. 1.An order of prohibition prohibiting the 2nd Respondent from implementing and/or revoking the Ex parte Applicant's title to land parcel No. Kisii Municipality/Block III/157
  2. 2.An order of certiorari removing into the High Court and quashing Gazette Notice Vol. CXIX - No. 97 of 17th July 2017 (Gazette Notice No. 6862) to the extent it relates to and affects land parcel Kisii Municipality/Block III/157
  3. 3.Costs of the application awarded to the Ex parte Applicant

Authorities

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Legislation

  • Constitution of KenyaArticles 40, 47, 50, 60, 67(2), 68(c)(v)
  • Fair Administrative Action ActSection 4 (including 4(3) and 4(4))
  • National Land Commission ActSection 14 (2012)

Cases cited (7)

  • Municipal Council of Mombasa -vs- Republic & Another
    CA No. 185 of 2001 [2002]eKLR
  • Kenya National Examination Council -vs- Republic ex parte Geoffrey Gathenji Njoroge & Nine Others
    Civil Appeal No. 266 of 1996 (unreported)
  • Republic -vs- National Land Commission Ex parte Holborn Properties Ltd
    [2016] eKLR
  • Judicial Service Commission -vs- Mbalu Mutava & Another
    [2015] eKLR
  • Ridge v. Baldwin
    [1964] AC 40
  • Republic -vs- National Land Commission & Tropical Treasure Limited Ex-parte Krystaline Salt Limited
    (2015) eKLR
  • Republic -vs- Registrar of Titles & Another Ex parte David Gachira & Another
    [2014]eKLR
Jurisdiction invoked
Judicial review supervisory jurisdiction of the High Court over bodies exercising quasi-judicial/administrative authority, under Article 47 of the Constitution and the Fair Administrative Action Act, 2015

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 National Land Commission & another; Pacifica Mwango[Interested party] Ex parte A. Jiwa Shamji Limited [2019] KEELC 2236 (KLR)", Case Analysis (2019). Judicial Review Miscellaneous Application (Notice of Motion dated 9th November 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2236/eng@2019-07-19

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