Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedJudicial Review Miscellaneous Application (Notice of Motion dated 23rd November, 2017)· [2020] KEELC 422 (KLR)

Republic v National Land Commission & another Exparte Simon Kimondo Mubea; Nairobi City County (Interested Party) [2020] KEELC 422 (KLR)

High Court of Kenya, Environment and Land Division (Judicial Review)
26 November 2020
5,005 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

#

Kenya's High Court upheld the National Land Commission's power to revoke titles originally allocated from public land, even decades after conversion to private ownership.

What this practically means

#

Executive summary

#
The ex-parte applicant, Simon Kimondo Mubea, sought certiorari to quash Gazette Notice No. 6863 of 17th July, 2017 in which the National Land Commission recommended revocation of his leasehold title to L.R. No. 209/13539/20 (I.R. 80461/1), formerly council staff housing in Woodley Estate, Nairobi, allocated to him on 24th August, 1992. He also sought mandamus to compel the Commission to issue a fresh Gazette Notice revoking its own, and prohibition against enforcement or physical takeover. The 2nd respondent filed grounds of opposition; the applicant alone filed submissions. The court, through S. Okong'o J, held that section 14 of the National Land Commission Act empowers the Commission to review grants of public land that has been alienated and converted to private land, so the suit property fell within its jurisdiction. The contention that the Commission's five-year review window expired on 2nd May, 2017 was held not properly before the court, not having been raised in the statutory statement, and in any event unproven: the Gazette Notice communicated rather than constituted the decision, and the applicant failed to furnish the full determination as required by Order 53 rule 7(1). On natural justice, the court found the applicant was given notice, responded in writing, appeared through advocates, and reasons were given, satisfying Article 47 and section 4 of the Fair Administrative Action Act. The contempt argument founded on the 2013 order in ELC JR. MISC. CAUSE NO. 30 OF 2011 also failed, as that case concerned the Registrar's powers, not the Commission's. The application was dismissed with each party bearing its own costs.

Key legal issues

#
01

Whether the 1st respondent had jurisdiction to review a title that had become private land

Holding

Yes; land that was public before alienation falls within the review jurisdiction even after conversion to private land

Reasoning

The court held that section 14 of the National Land Commission Act was intended to examine the propriety and legality of alienation of public land for private use. Once public land is alienated it becomes private land, but the Commission's mandate covers probing the conversion process. The suit property was council land before allocation, so review was competent.

p. 4
02

Whether the 1st respondent's review power had lapsed under the five-year period in section 14

Holding

The argument was not properly before the court, and in any event the applicant failed to prove the date the decision was made

Reasoning

The lapse issue was not raised in the statutory statement and no amendment was made. On the merits, the Gazette Notice merely communicated the decision; the full determination was available for collection, and without it the applicant, bearing the burden under Order 53 rule 7(1), could not show the decision was made after 2nd May, 2017.

p. 5
03

Whether the rules of natural justice and fair administrative action were observed

Holding

Yes; the applicant was notified, responded in writing, appeared through advocates, and reasons were given

Reasoning

Section 14(3) and (8) of the Act and Article 47 of the Constitution require notice and an opportunity to be heard. The evidence showed the applicant received notice of the complaints, responded in writing, appeared through counsel, and the Commission gave written reasons. The applicant's failure to avail the full decision meant he could not show his submissions were ignored.

p. 5
04

Whether the Gazette Notice breached the order in ELC JR. MISC. CIVIL APPLICATION NO. 30 OF 2011 (contempt)

Holding

No; that case concerned the Registrar's power to revoke titles without due process, not the Commission's powers under section 14

Reasoning

The court read the judgment and order in the 2011 case and found its issues did not touch on the Commission's section 14 powers. The revocation was recommended by the Commission, not the Registrar, so the earlier order was not breached.

p. 5

Legal principles established

#
  • Section 14 of the National Land Commission Act empowers the Commission to review alienations of public land even after conversion to private land
  • Judicial review is concerned with the decision-making process, not the merits of the decision
  • An applicant in judicial review cannot argue grounds other than those in the statutory statement unless amended

Court orders

#
  1. 1.The applicant's Notice of Motion application dated 23rd November, 2017 is dismissed
  2. 2.Each party shall bear its own costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 40(3), Article 47(1) and (2), Article 68(c)(v)
  • National Land Commission Act, 2012section 14
  • Registration of Titles Act, Chapter 281 Laws of Kenya (now repealed)section 23(1)
  • Land Registration Act, 2012section 26(1)
  • Land Act, 2012section 9(2)
  • Fair Administrative Action Act, 2015section 4(1), (2) and (3)
  • Civil Procedure RulesOrder 53 rule 4(1) and rule 7(1)

Cases cited (9)

  • Dr. Joseph N.K. Arap Ng'ok v Justice Moijo Ole Keiwua & 4 others
    Civil Application No. 60 of 1997
  • Republic v National Police Service Commission, Exparte Daniel Chacha Chacha
    [2016] eKLR
  • Judicial Service Commission v Mbalu Mutava & Another
    [2015] eKLR
  • Republic v Truth, Justice and Reconciliation Commission & another, Exparte Beth Wambui Mugo
    [2016] eKLR
  • Fahim Yasin Twaha & Yasin Twaha Abdalla v District Land Registrar, Lamu
    [2011] eKLR
  • Kenya Tea Growers Association v Francis Atwoli & 5 others
    [2012] eKLR
  • OJSC Power Machines Limited, Trans Century Limited, and Civicon Limited (Consortium) v. Public Procurement Administrative Review Board Kenya & 2 others
    [2017] eKLR
  • Kenya National Examination Council v Republic, Exparte Geoffrey Gathenji Njoroge & 9 others
    [1997] eKLR
  • Republic v National Land Commission & another, Exparte Muktar Saman Olow
    [2015] eKLR
Jurisdiction invoked
Judicial review jurisdiction of the High Court under Order 53 of the Civil Procedure Rules; leave granted on 9th November, 2017

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v National Land Commission & another Exparte Simon Kimondo Mubea; Nairobi City County (Interested Party) [2020] KEELC 422 (KLR)", Case Analysis (2020). Judicial Review Miscellaneous Application (Notice of Motion dated 23rd November, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/422/eng@2020-11-26

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