Isacko Pius Malicha & 2 others v National Land Commission & 2 others [2019] KEELC 2988 (KLR)
The bottom line
#Kenya's National Land Commission can revoke titles to land that was originally public land, even when current owners bought it innocently.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the National Land Commission to review titles to private land
The Commission has jurisdiction where the land was originally public land later converted to private land
Article 67(2)(e) empowers the Commission to investigate present or historical land injustices; Section 14 of the NLC Act requires review of all grants of public land. The court, relying on Muktar Saman Olow and Karaini Investments, held that this mandate can only be fulfilled by probing the process by which public land was converted to private land. It was not disputed the suit property was public land allocated to the 3rd Applicant.
Whether the Applicants were denied a fair hearing
No breach of natural justice; the Applicants squandered the opportunity to be heard
The applicants were summoned, had one adjournment granted, then sought a further adjournment on 6th April 2017 which was denied and they walked out. Guided by Kanda v Government of Malaysia, Ridge v Baldwin and Union Insurance v Ramzan Abdul Dhanji, the court held that the law requires a reasonable opportunity to be heard, not hearing in every litigation, and that opportunity was availed and not utilized.
Whether the 1st and 2nd Applicants are bona fide purchasers for value
They are not; the original title was unlawfully acquired and no valid title passed
Applying the Katende v Haridar test adopted in Lawrence P. Mukiri Mungai and the decision in Regnol Oil v NLC, the court held that Article 40(6) does not protect innocent purchasers of unlawfully acquired public land, since a void title passes nothing. The property had been set aside as a Christian graveyard and due diligence would have revealed this.
Legal principles established
#- Land once public land that has been converted to private land remains within the investigative and review mandate of the National Land Commission under Section 14 of the NLC Act and Article 68(c)(v) of the Constitution
- A party who is given a reasonable opportunity to be heard but fails to utilize it cannot claim breach of the right to a fair hearing
- Article 40(6) of the Constitution does not protect innocent purchasers of unlawfully acquired land because a void title cannot pass
Court orders
#- 1.The Notice of Motion dated 31st August 2017 seeking orders of certiorari and prohibition is dismissed
- 2.The Applicants to pay the costs of the application
- Jurisdiction invoked
- Order 53 of the Civil Procedure Rules (judicial review) and Article 47 of the Constitution; Fair Administrative Action Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Isacko Pius Malicha & 2 others v National Land Commission & 2 others [2019] KEELC 2988 (KLR)", Case Analysis (2019). Judicial Review Application (Notice of Motion dated 31st August 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2988/eng@2019-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.