George Riogi Mochama v National Land Commission & 2 others [2019] KEELC 3105 (KLR)
The bottom line
#Kenya's High Land Court quashed the National Land Commission's revocation of a Kisii land title because the owner was never told the specific allegations against him.
What this practically means
#Executive summary
#Key legal issues
#Whether the National Land Commission had jurisdiction to review the petitioner's title
The NLC had jurisdiction under section 14 of the National Land Commission Act to review grants of formerly public land even where privately held
The court cited Republic v National Land Commission Ex parte Holborn Properties Ltd, holding that the Commission may review titles privately held where the land was initially public and converted to private holdings, to establish whether the title was properly and legally acquired. The petitioner's challenge on mandate therefore failed; the challenge that succeeded concerned process, not power.
Whether the petitioner was accorded a fair hearing under Article 47 and the Fair Administrative Action Act
The petitioner was denied a fair hearing because the notices contained no particulars of the allegations and no documents were availed to him
The newspaper notice and letter of 30th March 2016 set out the Commission's mandate but not the particulars of alleged illegality. Under Article 47(1) and sections 4(3) and (4) of the Fair Administrative Action Act, an administrator must give prior notice of the nature and reasons of the action, materials to be relied upon, and opportunity to cross-examine. The process was trial by ambush and fairness was impossible.
Whether the petitioner's constitutional property rights were contravened
The petitioner held an indefeasible title and the NLC did not satisfy the conditions under section 26(1) of the Land Registration Act for impugning it
The petitioner was allocated the plot by council minute, received a letter of allotment, paid charges and was issued a Certificate of Lease. Protection under Article 40 excludes unlawfully acquired property, but the NLC did not establish fraud, misrepresentation, illegality or corruption as required by section 26(1)(a) and (b). The revocation therefore contravened Articles 40, 47 and 50.
Legal principles established
#- A notice inviting a party to a title review that does not set out the particulars of the alleged illegality offends Article 47 and the Fair Administrative Action Act
- A registered proprietor's title is absolute and indefeasible and may only be impugned on grounds under section 26(1)(a) and (b) of the Land Registration Act
- Review of titles without furnishing particulars and documents amounts to trial by ambush and is procedurally unfair
Court orders
#- 1.A declaration that the decision of the 1st respondent, in particular the Kenya Gazette Notice of 17th July 2017 touching LR No. Kisii Municipality/Block I/153, was irregular, illegal, unlawful and void
- 2.A declaration that the revocation of the petitioner's title in respect of LR No. Kisii Municipality/Block I/153 was ultra vires the National Land Commission Act, 2012 and hence invalid and unconstitutional
- 3.An order of judicial review in the nature of certiorari to quash the gazette notice of 17th July 2017 revoking the title
- 4.Costs of the petition awarded to the Petitioner as against the 1st Respondent
- Jurisdiction invoked
- Articles 40, 47 and 50 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Riogi Mochama v National Land Commission & 2 others [2019] KEELC 3105 (KLR)", Case Analysis (2019). Petition dated 3rd April 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3105/eng@2019-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.