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ELCPartially AllowedPetition dated 20th May 2019 (lodged 24th May 2019)· [2020] KEELC 738 (KLR)

Keiyan Self Help Association v National Land Commission & 3 others; Keiyan Group Branch, Oolontare, Sikawa and Oldanyati of Transmara (Interested Party) [2020] KEELC 738 (KLR)

Environment and Land Court of Kenya
22 October 2020
GOG. M. A. Ongondo
3,397 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The National Land Commission's dismissal of a historical land injustice claim was voided because it decided without hearing the claimant's side.

What this practically means

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Executive summary

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The petitioner, a registered association of about 16,000 members, petitioned the Environment and Land Court at Migori challenging the National Land Commission's dismissal of its historical land injustice claim (NLC/HLI/057/2017) concerning land known as Areas 'A' and 'B' in Transmara. The petitioner claimed its members were handed the land in 1923 and forcibly removed in 1976, and that the Commission dismissed its claim after hearing adverse evidence on 1st November 2018 without notice to or participation by the petitioner, culminating in Gazette Notice No. 882 of 1st March 2019. The Commission and the 3rd respondent opposed the petition, contending the petitioner was heard, that the claim was statute-barred and an abuse of process, and that the proper remedy was appeal or judicial review. The court adopted three issues: the Commission's jurisdiction, fair hearing, and whether the orders sought should issue. It held the Commission had jurisdiction under Article 67 and Section 15 of the NLC Act. On the evidence, including the Hansard record, it found the petitioner's case was heard on 24th September 2018 and 1st November 2018 in its absence and without notification, violating Articles 47, 48 and 50(1). The petition succeeded on prayers (a), (c) and (d): a declaration that the dismissal was unconstitutional and void, and certiorari quashing the determination and Gazette Notice. However, the court declined to declare the petitioner's members owners of the suit land, holding that issue must be determined on its merits after a fair hearing. Judgment was entered against the 1st, 2nd and 3rd respondents jointly and severally with costs; the claim against the 4th respondent was withdrawn without costs.

Key legal issues

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01

Jurisdiction of the National Land Commission over historical land injustice claims

Holding

The NLC is constitutionally mandated to investigate historical land injustices and administer public land; it had jurisdiction over the petitioner's claim NLC/HLI/057/2017

Reasoning

Article 67(2)(a) empowers the Commission to initiate investigations into present or historical land injustices on its own initiative or on complaint, and Section 15(1) of the NLC Act mandates it to receive, admit and investigate such complaints and recommend appropriate redress. Article 62(2) vests public land in county governments, to be administered by the Commission. The petitioner had lodged a claim in 2017, so the first issue was resolved in favour of the Commission's jurisdiction.

p. 3
02

Whether the petitioner was accorded a fair hearing

Holding

The 1st respondent violated the petitioner's rights to fair administrative action, fair hearing and access to justice by hearing the respondents' case on 24th September 2018 (recorded as 2019 in the findings) and 1st November 2018 without notice to or representation of the petitioner

Reasoning

The Hansard proceedings show the petitioner gave evidence on 10th May 2018 and was told hearing dates would be communicated on notice. On 11th October 2018 the respondents' case was heard with nothing to show the petitioner was notified, and on 1st November 2018 the respondents' submissions were received in the petitioner's absence. The right to be heard before an adverse decision is fundamental; the denial infringed Articles 47, 48, 50(1) and 25(c) of the Constitution.

p. 5
03

What reliefs follow from the violation

Holding

Declarations and certiorari quashing the determination and Gazette Notice were granted, but a declaration of ownership of the suit land was refused as it should be heard on its merits

Reasoning

Having proved the violation to the requisite standard under Articles 22(1) and 23(3), the petitioner was entitled to reliefs (a), (c) and (d). However, the declaration of ownership in prayer (b) goes to the merits of the land claim, which must be determined after a fair hearing on the merits; granting it would itself breach fair hearing principles. Certiorari quashes the defective determination without determining ownership.

p. 5

Legal principles established

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  • The right to be heard before an adverse decision is taken against a person is fundamental and permeates the entire justice system
  • A party must be made aware of a matter and served with the necessary papers, and is then entitled to appear or decline to appear
  • Hearing a claim in the absence of a party not notified of the hearing violates the audi alteram partem rule

Court orders

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  1. 1.A declaration that the 1st respondent's dismissal of the petitioner's claim without hearing the petitioner on 1st November 2018 was unconstitutional, null and void (prayer (a))
  2. 2.A Judicial Review Order of certiorari to quash the 1st respondent's determination dated 7th February 2019 and Gazette Notice No. 882 of 1st March 2019 (prayer (c))
  3. 3.Any other or further orders, writs and directions the court considers appropriate and just (prayer (d))
  4. 4.Judgment entered for the petitioner against the 1st, 2nd and 3rd respondents jointly and severally with costs
  5. 5.Prayer (b) (declaration of ownership of the suit land) declined
  6. 6.Claim against the 4th respondent withdrawn with no order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22(1), 23(3), 25(c), 47, 48, 50(1), 62(2), 67(1), 67(2)(a)-(h), 67(3), 159(2)(b) and (d), 252, 260, 7(3)(b)
  • National Land Commission Act, 2012Sections 6, 6(3)(c), 15(1), 15(2)
  • Fair Administrative Action ActSections 4(3) and (4), 5
  • Civil Procedure Act (Cap 21)Sections 1, 1A, 3, 3A, 2; Order 5(1) of the Civil Procedure Rules, 2010
  • Environment and Land Court Act, 2015Sections 3 and 19
  • The Native Lands Trust Ordinance No. 280 of 1938The Native Lands (Kenya Migori Land Utilization Rules 1950)

Cases cited (7)

  • Great Lakes Company (U) Ltd v Kenya Revenue Authority
    (2009) KLR 720
  • Onyango Oloo v Attorney General
    (1986-1989) EA 456
  • James Kanyiita Nderitu v Marios Philotas Ghikas and another
    (2016) eKLR
  • Ogada v Mollin
    (2009) KLR 620
  • Ali bin Khamis v Salim Bin Khamis Kirube and others
    (1956) EA 195
  • Re-Hebtullah Properties Ltd
    (1976-80) 1 KLR 1195 at 1209
  • Philip Chemwolo and another v Augustine Kubende
    (1982-88) KAR 103
Jurisdiction invoked
Articles 22(1) and 23(3) of the Constitution of Kenya, 2010 (enforcement of Bill of Rights); Environment and Land Court Act, 2015

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, "Keiyan Self Help Association v National Land Commission & 3 others; Keiyan Group Branch, Oolontare, Sikawa and Oldanyati of Transmara (Interested Party) [2020] KEELC 738 (KLR)", Case Analysis (2020). Petition dated 20th May 2019 (lodged 24th May 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/738/eng@2020-10-22

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