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ELCDismissedJudicial Review Application (Notice of Motion dated 31st August 2017)· [2019] KEELC 2988 (KLR)

Isacko Pius Malicha & 2 others v National Land Commission & 2 others [2019] KEELC 2988 (KLR)

Environment and Land Court
3 June 2019
4,971 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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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

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Executive summary

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The ex-parte applicants moved the Court by Notice of Motion dated 31st August 2017 seeking orders of certiorari to quash the National Land Commission's decision to investigate and to revoke the title to land reference number 11969/214, and prohibition against the Chief Land Registrar revoking the title. The 1st Respondent filed grounds of opposition and the 3rd Respondent (Marsabit Pastors Fellowship) filed a replying affidavit; the 2nd Respondent did not participate. The court framed three issues: the Commission's jurisdiction over private land title, whether the applicants received a fair hearing, and whether the 1st and 2nd applicants were bona fide purchasers for value. On jurisdiction, the court held that land once public but converted to private land falls within the Commission's mandate under Section 14 of the National Land Commission Act and Article 68(c)(v) of the Constitution, following Muktar Saman Olow and Karaini Investments. On fair hearing, the applicants had been afforded opportunities, obtained one adjournment, and then walked out when a further adjournment was denied; the court held the right to be heard requires only a reasonable opportunity, which was squandered. On bona fide purchase, relying on Regnol Oil, the court held Article 40(6) of the Constitution does not protect purchasers of unlawfully acquired land since a void title passes nothing. The application was dismissed with costs on 3rd June 2019.

Key legal issues

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01

Jurisdiction of the National Land Commission to review titles to private land

Holding

The Commission has jurisdiction where the land was originally public land later converted to private land

Reasoning

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.

p. 5
02

Whether the Applicants were denied a fair hearing

Holding

No breach of natural justice; the Applicants squandered the opportunity to be heard

Reasoning

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.

p. 6
03

Whether the 1st and 2nd Applicants are bona fide purchasers for value

Holding

They are not; the original title was unlawfully acquired and no valid title passed

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 31st August 2017 seeking orders of certiorari and prohibition is dismissed
  2. 2.The Applicants to pay the costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 61(2)
  • Constitution of Kenya, 2010Article 62(2)
  • Constitution of Kenya, 2010Article 67(1) and (2)(e)
  • Constitution of Kenya, 2010Article 68(c)(v)
  • Constitution of Kenya, 2010Article 40(6)
  • National Land Commission ActSections 5, 6 and 14(1), (5), (7)
  • Fair Administrative Action ActNo. 4 of 2012
  • Civil Procedure RulesOrder 53 Rule 7

Cases cited (20)

  • Republic -Vs- National Land Commission & 4 Others Ex-Parte Holborn Company Limited & Another
  • Republic -Vs- National Land Commission Ex-parte Holborn Properties Limited [2016] e KLR
    [2016] e KLR
  • Sceneries Limited -Vs- National Land Commission
  • Republic -Vs- National Land Commission & Tropical Treasure Limited, Ex-parte Krystalline Salt Limited
  • Republic -Vs- Land Registrar Mombasa & 2 Others Ex-Parte Bhangra Limited [2012] e K.L.R
    [2012] e K.L.R
  • Republic -Vs- National Land Commission & 2 Others Ex-Parte Airways Holding Limited (2015) e KLR
    (2015) e KLR
  • Republic -Vs- National Land Commission & Another Ex-parte Muktar Saman Olow, Miscellaneous Appl. No. 376 of 2014 [2015]
    Misc. Appl. No. 376 of 2014 [2015]
  • Republic -Vs- Kenya National Highway Authority & 7 Others, Exparte Kenya Transporters Association & Others (2013)
    (2013)
  • Lawrence P. Mukiri Mungai, Attorney of Francis Muroki Mwauri -Vs- Attorney General & 4 Others [2017] e K.L.R
    [2017] e K.L.R
  • Republic -Vs- National Land Commission & 4 others Exparte Fulson Company Limited and Another
  • Nicholas Mwatika Mulei -Vs- National Land Commission & 3 others (2018)
    (2018)
  • Samuel Kamere -Vs- Lands Registrar, Kajiado Civil Appeal No. 28 of 2005
    Civil Appeal No. 28 of 2005
  • Karaini Investments Vs National Land Commission & Another [2018] e KLR
    [2018] e KLR
  • Kanda Vs Government Of Malaysia 1962 A.C 322
    [1962] A.C. 322
  • Ridge Vs Baldwin 1964 A.C 40
    [1964] A.C. 40
  • Rugsel Vs Duke of Norfolk 1949 1 ALL E.R 109
    [1949] 1 All E.R. 109
  • Margaret Wairimu Magara & another Vs Faith Wanjiku Gikunju [2017] e KLR
    [2017] e KLR
  • The Union Insurance Company of Kenya Ltd Vs Ramzan Abdul Dhanji C.A Civil Application No. 179 of 1996
    Civil Application No. 179 of 1996 (unreported)
  • Katende Vs Haridar & Company Limited [2008] 2 E.A. 173
    [2008] 2 E.A. 173
  • Regnol Oil (K) Limited Vs National Land Commission & another [2017] e KLR
    [2017] e KLR
Jurisdiction invoked
Order 53 of the Civil Procedure Rules (judicial review) and Article 47 of the Constitution; Fair Administrative Action Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.