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ELCAllowedELC Misc. Civil Application No. 38 of 2017· [2019] KEELC 2865 (KLR)

Republic v National Land Commission & another; Vinodkumar Ramdattmal Pal & another (Ex-Parte Applicant); Board of Management Kisumu Girls High School (Interested Party) [2019] KEELC 2865 (KLR)

Environment and Land Court
26 June 2019
3,588 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Environment and Land Court in Kisumu quashed the National Land Commission's revocation of private land titles because the owners were never notified or given a hearing.

What this practically means

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Executive summary

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The Ex-parte Applicants, registered proprietors of Kisumu Municipality/Block 6/608 to 613, sought certiorari to quash and prohibition to restrain implementation of a decision by the National Land Commission conveyed in a letter dated 4th November 2016, by which the Commission found their titles illegal, revoked them, and vested the land in Kisumu Girls High School as Kisumu Municipality/Block 6/244. The Respondents filed no replying papers; the Interested Party opposed, arguing the Commission acted within its constitutional mandate under Article 67(2) and Section 14 of the National Land Commission Act, that public notice was given under Section 155 of the Land Act, and that the Applicants failed to attend the public hearing. The court framed three issues: whether the Commission acted within its powers, whether judicial review orders were merited, and costs. The court held that although the Commission had jurisdiction to review grants of public land, it acted as a quasi-judicial authority bound by Article 47 and Section 14(3) of the NLC Act to notify and hear the affected registered proprietors. The Applicants' registration was unrebutted and their deposition that they were never notified or heard was uncontroverted; the Interested Party's contrary assertion was unsupported by documentary evidence. The court also noted the Commission's decision effectively overrode the unappealed 2005 High Court decision in Kisumu H.C. Misc. Application No. 285 of 2004 validating the mother titles, which was ultra vires and contravened Section 15(3)(b) of the NLC Act. The notice of motion was allowed in terms of prayers 1 and 2, with certiorari and prohibition issuing, and each party bearing their own costs.

Key legal issues

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01

Whether the National Land Commission had jurisdiction to review the grants over the suit properties

Holding

The Commission had the power under Article 67(2) of the Constitution and Section 14 of the National Land Commission Act to review grants or dispositions of public land, but had to exercise it in accordance with Article 47 principles of fair administrative action.

Reasoning

The court read Article 67(2) and Section 14 of the NLC Act together and found that as at 4th November 2016 the Commission had jurisdiction to review grants and dispositions of public land. However, Section 14(8) obliges the Commission to be guided by Article 47 principles, and Section 14(3) required notice to affected registered proprietors. Jurisdiction was therefore conditional on procedural fairness.

p. 5
02

Whether the Applicants were afforded a hearing before the impugned decision

Holding

The Applicants, as registered proprietors, were neither notified of the Interested Party's claim nor given an opportunity to be heard; the decision violated Articles 47 and 50 and Section 14(3) of the NLC Act and could not stand.

Reasoning

The Applicants' registration of the suit parcels was unrebutted. They deponed they were never notified or invited to the review hearing. The Interested Party's assertion that the Applicants failed to attend was a mere allegation from the bar with no documentary evidence, and the Respondents filed no affidavit or documents to rebut the Applicants' deposition. Failure to hear affected persons breached the fair hearing guarantees.

p. 6
03

Whether the Commission's decision unlawfully overrode the 2005 High Court decision validating the mother titles

Holding

The 2005 High Court decision in Kisumu H.C. Misc. Application No. 285 of 2004, which stopped revocation of the mother titles, was never appealed or reviewed; the Commission's attempt to achieve the same result was ultra vires and contravened Section 15(3)(b) of the NLC Act.

Reasoning

The Applicants' deposition that the 2005 decision quashed the attempt to cancel the original parcels Kisumu Municipality/Block 6/548 and 549 was unchallenged, and the Commissioner of Lands, the Commission's predecessor, was a party thereto. The Commission should have pursued an appeal, constitutional petition or civil suit rather than re-opening the matter by creating Block 6/244, which the court held to be ultra vires.

p. 6
04

Scope of judicial review

Holding

Judicial review is concerned with the process by which a decision was made, not its merits.

Reasoning

The court emphasised that the proceedings were not about the merit of the Commission's decision but about whether the legal processes prescribed by the Constitution and statutes were followed. On the unchallenged evidence, the process was flawed because affected registered proprietors were not notified or heard, so the decision was quashed on procedural grounds alone.

p. 6

Legal principles established

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  • In exercising its review mandate under Section 14 of the National Land Commission Act, the Commission acts as a quasi-judicial authority whose decisions are subject to the court's supervisory jurisdiction through judicial review proceedings.
  • A statutory body making a decision that divests registered proprietors of their land must notify and afford them a hearing; a decision made in breach of Articles 47 and 50 cannot stand.

Court orders

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  1. 1.An order of certiorari removing into the Environment & Land Court and quashing the National Land Commission's decision contained in its letter dated 4th November 2016 Ref: NLC/REVIEW/RST/KSM/1/16 revoking the Applicants' titles over Kisumu Municipality/Block 6/608-613 and vesting the land in Kisumu Girls High School
  2. 2.An order of prohibition restraining the Chief Land Registrar from acting on the findings, decision and directives in the said letter dated 4th November 2016
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47(1), (2), (3)(a), (b); Article 50; Article 67(2)(e); Article 22; Article 23(3)(f)
  • National Land Commission Act, No. 5 of 2012Section 14(1), (3), (8); Section 15(3)(b)
  • Fair Administrative Action Act, No. 4 of 2015Section 7; Section 7(2)(a)(v); Part III
  • Law Reform Act, Chapter 26 Laws of KenyaSections 8 and 9; Part VI
  • Civil Procedure RulesOrder 53
  • Land Act, No. 6 of 2012Section 155

Cases cited (1)

  • Japheth Kipkimboi Magut vs National Land Commission & 2 Others
    [2017] eKLR
Jurisdiction invoked
Articles 22, 23(3)(f) and 47 of the Constitution; Section 8 and 9 of the Law Reform Act (Cap. 26); Section 7 of the Fair Administrative Action Act No. 4 of 2015; Order 53 of the Civil Procedure Rules

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; Vinodkumar Ramdattmal Pal & another (Ex-Parte Applicant); Board of Management Kisumu Girls High School (Interested Party) [2019] KEELC 2865 (KLR)", Case Analysis (2019). ELC Misc. Civil Application No. 38 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2865/eng@2019-06-26

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