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ELCPartially AllowedJudgment does not state the petition number (application dated 25th November 2019 within the Petition)· [2020] KEELC 995 (KLR)

Alex Kamweru Njunge v National Land Commission & 4 others [2020] KEELC 995 (KLR)

Environment and Land Court
15 October 2020
2,742 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan landowner won court protection stopping the National Land Commission from revoking his title after it acted without following due process.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Thika, delivered by L. Gacheru J on 15th October 2020, determined a Notice of Motion dated 25th November 2019 in a constitutional petition by the registered owner of land parcel No. Ndumberi/Riabai/2674. The Applicant sought conservatory orders restraining action on the 1st Respondent's (National Land Commission) determination published in a Special Kenya Gazette Issue of 9th November 2018 recommending revocation of his title and re-planning of the parcel as a market, plus orders compelling the Respondents to avail documents including the written complaint, review proceedings, written determination, land records and survey records. The Applicant contended the determination was made without a hearing, after expiry of the NLC's statutory mandate on 2nd May 2017, without a written complaint, and in excess of jurisdiction, violating his rights as a bona fide purchaser. The 4th Respondent challenged his locus standi; the 2nd, 3rd and 5th Respondents filed grounds of opposition. The Court first found the Applicant, as registered owner, had sufficient interest to sue, including against the 4th Respondent. Applying the conservatory order principles in KETRACO v Kibotu and Gatirau Peter Munya v Dickson Mwenda Kithinji, and the Mrao definition of a prima facie case, it held the Applicant had established a prima facie case (the recommendation was made without due process and in excess of jurisdiction) and irreparable harm, as his uncontroverted developments would be demolished. The Court allowed the application, granted the conservatory orders, directed availing of the documents, re-directed the survey records order to the 5th Respondent, and awarded the Applicant costs.

Key legal issues

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01

Locus standi of the Applicant to sue the 4th Respondent

Holding

The Applicant, as registered owner, has sufficient interest; locus against the 4th Respondent who would be affected by the orders was demonstrated

Reasoning

The Court adopted the Law Society of Kenya and Alfred Njau definitions of locus standi. As registered owner of the suit property, the Applicant holds all rights and interest over it. Since the 1st Respondent's recommendation that the land be used as a market is to be implemented by the 4th Respondent, that recommendation affects the Applicant, establishing sufficient interest to sue.

p. 3
02

Entitlement to conservatory orders

Holding

Conservatory orders granted: the Applicant established a prima facie case, irreparable harm (developments would be demolished if the land becomes a market), and the recommendation was made without due process and in excess of jurisdiction

Reasoning

Applying the principles from KETRACO v Kibotu and Gatirau Peter Munya v Dickson Mwenda Kithinji, the Court found a prima facie case because the Gazette Notice recommended revocation of the Applicant's title without following due process and in excess of jurisdiction. Uncontroverted photographs of development showed irreparable harm, as damages could not cover demolition, justifying maintenance of the status quo pending the Petition.

p. 4
03

Access to documents (complaint, proceedings, determination, land records, survey records)

Holding

The documents are necessary for effective adjudication and must be availed; survey records to come from the 5th Respondent rather than the 4th

Reasoning

The Court noted the Applicant's correspondence seeking the written complaint and proceedings and found the documents necessary for effective adjudication of the Petition. It therefore directed their availing. On the survey records, it accepted the 4th Respondent's objection that issuing survey records falls under the 5th Respondent's mandate and re-directed that order accordingly.

p. 4

Legal principles established

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  • Locus standi signifies a right to be heard; a person must have sufficiency of interest to sustain standing to sue
  • A registered owner of suit property has sufficient interest to sue in a matter involving that property
  • A conservatory order will issue where the applicant demonstrates a prima facie case with likelihood of success and real danger of prejudice absent the order

Court orders

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  1. 1.Conservatory order of injunction restraining and staying any action by the Respondents on the 1st Respondent's determination in Kenya Gazette (Special Issue) Vol. CXX-No. 138 of 9th November 2018 touching on land parcel No. Ndumberi/Riabai/2674, and restraining the 2nd to 5th Respondents from cancelling the Petitioner's title, re-planning the parcel, or acting on the said determination, pending hearing and determination of the Petition
  2. 2.The 1st Respondent to avail copies of the written complaint for review of grant, the proceedings and hearings conducted for the review, and the full written determination
  3. 3.The 3rd Respondent to avail copies of the land records/Green card for the suit property
  4. 4.The 5th Respondent (instead of the 4th Respondent) to avail copies of the survey records for the suit property
  5. 5.Directions on the hearing of the substantive Petition
  6. 6.Costs of the Application to the Applicant

Authorities

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Legislation

  • National Land Commission ActSections 14(3) and (4)
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (7)

  • Law Society of Kenya vs Commissioner of Lands & Others
    Nakuru High Court Civil Case No. 464 of 2000
  • Alfred Njau and Others vs City Council of Nairobi
    (1982) KAR 229
  • Kenya Electricity Transmission Company Limited vs Kibotu Limited
    [2019] eKLR
  • Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others
    [2015] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
  • Mrao Ltd vs First American Bank of Kenya Ltd & Others
    (2003) KLR
  • Muslims for Human Rights (MUHURI) & 2 Others vs Attorney General & 2 Others
    HC Petition No. 7 of 2011
Jurisdiction invoked
Constitutional petition jurisdiction (Bill of Rights enforcement); specific provision not cited in the judgment

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, "Alex Kamweru Njunge v National Land Commission & 4 others [2020] KEELC 995 (KLR)", Case Analysis (2020). Judgment does not state the petition number (application dated 25th November 2019 within the Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/995/eng@2020-10-15

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