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ELCAllowedJudicial Review Application (Notice of Motion dated 15th November, 2018)· [2019] KEELC 3026 (KLR)

Republic v National Land Commission & 2 others Exparte Oyster Village Limited [2019] KEELC 3026 (KLR)

High Court of Kenya
30 May 2019
EOE. O. Obaga
964 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court blocked the National Land Commission from cancelling a land amalgamation, protecting over 100 homeowners until the full judicial review is decided.

What this practically means

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Executive summary

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The Ex-Parte Applicant, having purchased Nairobi Block 82/1765 (2 ha) and Nairobi Block 82/1767 (3 ha) from Shephard Group of Companies, amalgamated them into Nairobi Block 82/9102 and developed Oyster Village Estate comprising 68 maisonettes, 28 apartments and 13 community shops, since sold to third parties. Following a complaint by Savannah Jua Kali Association, the 1st Respondent reviewed the grants and, by determination dated 23rd March, 2018, cancelled the amalgamation, directed reversion of the title, awarded Nairobi Block 82/1765 to Savannah Jua Kali members, and (as amended by Gazette Notice of 15th February, 2019) directed that Nairobi Block 82/1767 be registered to the Nairobi County Government. The Applicant, having already obtained leave to commence judicial review (leave not operating as stay), moved the Court by Notice of Motion dated 15th November, 2018 seeking conservatory orders restraining implementation of the determination pending the hearing and determination of the judicial review suit. The 1st Respondent opposed the application as scandalous, frivolous and vexatious, contrary to Order 53 Rule 2. The court framed a single issue: whether conservatory orders should issue. Noting that the Commission could not establish that the suit property was land surrendered for public utilities, that over 100 third-party home owners occupy the estate, and that neither the Applicant nor the occupiers participated in the hearings before the Commission, the court found a case for preservation of the suit property. The Notice of Motion was allowed in terms of prayers (3) and (5), with costs in the cause.

Key legal issues

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01

Whether conservatory orders should issue pending the hearing and determination of the judicial review application

Holding

Conservatory orders issued because the suit property was not found to be land surrendered for public purposes, over 100 third-party home owners occupy the estate, and there was no evidence the Applicant or the occupiers participated in the hearings leading to the NLC determination.

Reasoning

The court examined the NLC determination and found the Commission itself was unable to establish that the suit property was among parcels surrendered for public utilities; the original owner's counsel identified only two school parcels. The County Government lacked records for many parcels. The Applicant had developed the estate and sold homes to over 100 third parties, none of whom were involved in the hearing. Preserving the property pending judicial review was therefore necessary and the application was not vexatious.

p. 2

Legal principles established

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  • Conservatory orders may issue to preserve suit property where the applicant demonstrates a need to preserve the status quo pending judicial review, especially where third parties have occupied the property and there is no evidence they were heard in the proceedings under review.

Court orders

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  1. 1.Conservatory orders restraining the 1st, 2nd and 3rd Respondents or their agents, servants or employees from implementing the decision by the 1st Respondent contained in the Determination dated 23rd March, 2018 cancelling the amalgamation of Nairobi/Block 82/1765 and Nairobi/Block 82/1767, pending the hearing and determination of the suit
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 2
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules; conservatory orders pending hearing and determination of the judicial review suit

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 & 2 others Exparte Oyster Village Limited [2019] KEELC 3026 (KLR)", Case Analysis (2019). Judicial Review Application (Notice of Motion dated 15th November, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3026/eng@2019-05-30

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