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ELCAllowedJudicial Review Application (Notice of Motion dated 21st September 2017)· [2019] KEELC 2713 (KLR)

Republic v Chairman National Land Commission & 4 others; Pacifica Mwango (As administrator of the estate of Simon Kegesa)[Interested Party]; Ex Parte Aboko John Samuel Kumenda & another [2019] KEELC 2713 (KLR)

Environment and Land Court (High Court, at Kisii)
5 July 2019
4,820 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The High Court in Kisii quashed the National Land Commission's decision to revoke private land titles because the owners were never given a fair hearing.

What this practically means

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Executive summary

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The Ex Parte Applicants, registered co-owners of LR No. Kisii Municipality/Block III/301, sought certiorari and prohibition by Notice of Motion dated 21st September 2017 to quash the decision of the National Land Commission conveyed vide Kenya Gazette Notice of 17th July 2017 directing the Chief Land Registrar to revoke their title and vest the land in Pacifica Mwango as administrix of the estate of Simon Kegesa. They contended the Commission acted without jurisdiction over private land, and that they were never notified of the review proceedings nor afforded a fair hearing, contrary to Articles 40, 47 and 50 of the Constitution, Section 14 of the National Land Commission Act, 2012 and Section 4 of the Fair Administrative Action Act, 2015. The Commission and the interested party asserted that notice was given by letter dated 23rd September 2016, public notice in local dailies, and service through a process server evidenced by an affidavit of service. The court confined itself to process, not merits, and found the notices deficient as they did not disclose particulars of the complaint; the affidavit of service lacked detail and the notice period was unreasonably short. This amounted to trial by ambush and a breach of natural justice and Article 47. The court held the decision unsustainable, allowed the motion in terms of prayers 1, 2 and 3, quashing the impugned decision and prohibiting its implementation, with costs to the Ex parte Applicants.

Key legal issues

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01

Mandate and jurisdiction of the National Land Commission to review grants

Holding

The Commission is vested with jurisdiction under Article 67(2) of the Constitution and Section 14 of the National Land Commission Act, 2012 to review grants or dispositions of public land to establish their propriety or legality.

Reasoning

The court reviewed Article 67(2) and Section 14 of the National Land Commission Act, 2012 and held that the Commission carried its mandate within that framework, including review of titles privately held where they were initially public land. The challenge therefore did not succeed on the scope of the Commission's mandate; the failure lay in the process rather than the power exercised.

p. 4
02

Whether notice and fair hearing requirements were met

Holding

The notices were deficient, the affidavit of service was defective, and the Applicants were not afforded a fair hearing contrary to Article 47 of the Constitution, Section 4 of the Fair Administrative Action Act, 2015 and the rules of natural justice.

Reasoning

The process server allegedly served six persons on 3rd October 2016 for a hearing on 5th October 2016, an unreasonably short notice, and the affidavit of service lacked details of who was served, how and where. The letter and newspaper notice did not disclose the complaint or particulars of alleged illegality, amounting to trial by ambush. The court found the Applicants were condemned unheard.

p. 6
03

Scope of judicial review

Holding

The court cannot interrogate the merits of the Commission's decision; it is restricted to whether the Applicants were given fair treatment and whether due process was followed.

Reasoning

Applying Municipal Council of Mombasa v Republic, the court held that judicial review concerns the decision-making process: whether the decider had power and whether affected persons were heard. Acting as an appeal court over the decider would involve going to the merits, which is outside the province of judicial review.

p. 4

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision.
  • A deficient and vague affidavit of service cannot sustain a finding of valid service of notice of hearing.
  • A notice that fails to disclose particulars of alleged illegality denies the affected party a fair hearing under Article 47.
  • A registered proprietor's title cannot be arbitrarily cancelled without an opportunity to be heard.

Court orders

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  1. 1.An order of certiorari removing into the court and quashing the proceedings and processes culminating in the decision conveyed vide Kenya Gazette Notice No. 6862, Volume CXIX No. 97 published on 17th July 2017 (prayer 1)
  2. 2.An order of certiorari quashing any administrative steps, actions or measures taken by the Respondents to implement or give effect to the impugned decision (prayer 2)
  3. 3.An order of prohibition against the Respondents dealing with or implementing the impugned decision (prayer 3)
  4. 4.Costs of the application awarded to the Ex parte Applicants

Authorities

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Legislation

  • Constitution of KenyaArticles 40, 41, 47, 50(1), 60, 64, 67(1), 67(2), 68(c)(v)
  • National Land Commission ActSection 14(1)-(9)
  • Fair Administrative Action ActSection 4(3) and 4(4)

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 jurisdiction over administrative action of the National Land Commission; leave granted on 20th September 2017; decision impugned via Kenya Gazette Notice No. 6862 of 17th July 2017; rights under Articles 40, 47 and 50 of the Constitution and Section 4 of 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 Chairman National Land Commission & 4 others; Pacifica Mwango (As administrator of the estate of Simon Kegesa)[Interested Party]; Ex Parte Aboko John Samuel Kumenda & another [2019] KEELC 2713 (KLR)", Case Analysis (2019). Judicial Review Application (Notice of Motion dated 21st September 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2713/eng@2019-07-05

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