Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedELC JR No. 28 of 2017· [2019] KEELC 5036 (KLR)

Republic v National Land Commission & another Exparte Patel Ravji Lalji & another; Tom Owiny & 2 others (Interested Parties) [2019] KEELC 5036 (KLR)

High Court of Kenya, Environment and Land Court
27 March 2019
EOE. O. Obaga
1,921 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

The High Court cancelled the National Land Commission's revocation of a Nairobi property title because the owners were never given a hearing.

What this practically means

#

Executive summary

#
The Ex-parte Applicants, registered owners of LR No. 209/11309 which they purchased from the 1st and 2nd Interested Parties in October 2013 for Kshs.50,000,000, sought judicial review orders of certiorari and prohibition following a determination by the National Land Commission dated 22nd June 2016, gazetted on 17th July 2017, revoking the grant to their transferors and directing cancellation of their title in favour of the 3rd Interested Party. The court framed two issues: the Commission's jurisdiction and whether the Applicants received a fair hearing. On jurisdiction, the court held the Commission was properly seized of the inquiry since the suit property was originally public land allotted to the 1st and 2nd Interested Parties following a complaint. However, on process, the court found no evidence that the Applicants were ever invited to be heard; the newspaper advertisement named only the 3rd Interested Party and the determination was not copied to the Applicants despite the Commission knowing of the transfer to them. The Commission's finding that the Applicants had not paid stamp duty was contradicted by unrebutted evidence of payment of Kshs.2,000,000, rendering the decision irrational. Applying the Pastoli test of illegality, irrationality and procedural impropriety, the court found the Applicants were condemned unheard and allowed the Motion. It quashed the Commission's decision and prohibited the Chief Land Registrar from implementing the gazette notice as regards the suit property. No express costs order appears in the judgment.

Key legal issues

#
01

Whether the National Land Commission had jurisdiction to inquire into the grant of the suit property

Holding

The Commission had jurisdiction because the suit property was originally public land allotted to the 1st and 2nd Interested Parties, and there was a complaint that it had been allotted to the 3rd Interested Party instead.

Reasoning

The suit property was initially public land later allotted to the 1st and 2nd Interested Parties. A complaint was lodged with the Commission alleging the property had been allotted to the 3rd Interested Party but the grant went to the 1st and 2nd Interested Parties. Under Section 14 of the National Land Commission Act, the Commission was empowered to inquire into how that grant was made, so jurisdiction was established.

02

Whether the Ex-parte Applicants were accorded a fair hearing before cancellation of their title was recommended

Holding

They were not. No evidence showed they were invited or heard, yet the Commission was aware their title was registered and recommended its cancellation.

Reasoning

The advertisement in the Star named only the 3rd Interested Party, and the forwarding letter was not copied to the Ex-parte Applicants although the Commission knew the property had been transferred to them. The determination considered submissions only from the 1st, 2nd and 3rd Interested Parties. They were condemned unheard without being given a chance to prove their purchase and payment of stamp duty.

p. 3
03

Whether the Commission's finding on stamp duty and innocent purchase was rational

Holding

The finding was irrational and incapable of any logical conclusion since unrebutted evidence showed the Applicants paid stamp duty.

Reasoning

The determination suggested the Ex-parte Applicants did not pay stamp duty, yet annextures showed they purchased the property for Kshs.50,000,000 and paid stamp duty of Kshs.2,000,000, which no Replying Affidavit disputed. Combined with the denial of a hearing, the decision failed the judicial review test of rationality and could not stand.

p. 3

Legal principles established

#
  • A decision arrived at without hearing an affected party and which is irrational cannot stand.

Court orders

#
  1. 1.An order of certiorari quashing the decision of the 1st Respondent dated 22nd June, 2016 as contained in the special issue of the Kenya Gazette Notice Vol CXIX-No.97 of 17th July, 2017
  2. 2.An order of prohibition prohibiting the 2nd Respondent from effecting the decision of the 1st Respondent as contained in the special issue of the Kenya Gazette Vol. CXIX - No 97 of 17th July, 2017 as regards L.R. No. 209/11309 Nairobi

Authorities

#

Legislation

  • Constitution of Kenya
  • National Land Commission ActSection 14
  • Fair Administrative Action ActSections 7, 9(2)
  • Civil Procedure RulesOrder 53 Rule 3

Cases cited (1)

  • Pastoli Vs Kabale District Local Government Council and Others
    [2008] 2EA 300
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules, in relation to Section 14 of the National Land Commission Act, 2012 and the Fair Administrative Action Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v National Land Commission & another Exparte Patel Ravji Lalji & another; Tom Owiny & 2 others (Interested Parties) [2019] KEELC 5036 (KLR)", Case Analysis (2019). ELC JR No. 28 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5036/eng@2019-03-27

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