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ELCDismissedELC JR 5 OF 2019· [2020] KEELC 1041 (KLR)

Republic National Land Commission & another Ex Parte Joseph Mungai Gichuru & another [2020] KEELC 1041 (KLR)

Environment and Land Court
8 October 2020
1,781 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Land Commission can revoke titles to land once reserved for public use, even after several sales, if buyers knew of the reservation.

What this practically means

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Executive summary

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The ex-parte applicants, a couple jointly registered as owners of LR Nos 15868/1 and 2 (original No.14906/30), sought judicial review orders of certiorari and prohibition to quash and prevent implementation of Gazette Notice No. VOL CXX-No.138 dated 9th November 2018, by which the National Land Commission, following a review inquiry prompted by complaints from Muthaiga North Residents Association, revoked their titles on the ground that the land had been reserved for a public nursery school. The respondents did not respond; only the interested party opposed. The court, Obaga J, framed three issues. First, on jurisdiction, the court held that section 14(1) of the National Land Commission Act empowered the Commission to review grants of land that was once public land and had been converted to private hands, adopting Mativo J's reasoning in the applicants' earlier constitutional petition (Petition No. 530 of 2016), and holding that the Leting decision relied on by the applicants was no longer good law as its proceedings had been set aside. Second, on natural justice, the court found the applicants were afforded a hearing: the inquiry was advertised, counsel made written submissions and they participated. Third, on bona fide purchase, the court held that the applicants, aware from condition No.5 of the grant that the land was reserved for a nursery school, could not invoke section 14(7) protection as purchasers without notice. The Notice of Motion was dismissed with costs to the interested party.

Key legal issues

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01

Jurisdiction of the NLC to review grants over land alleged to have originally been public land

Holding

The NLC had jurisdiction to review the grants

Reasoning

Section 14(1) of the NLC Act gave the NLC a five-year mandate to review grants or dispositions of public land to establish their propriety or legality. Where land was once public land converted to private hands, the Commission may query the conversion process. The Leting decision relied on by the Applicants was no longer good law as its proceedings were set aside.

02

Whether the Applicants were afforded a hearing

Holding

The Applicants were afforded an opportunity to be heard

Reasoning

The inquiry was advertised in the press; the Applicants engaged a lawyer who made written submissions and they fully participated after their petition was dismissed. Natural justice was satisfied.

p. 3
03

Whether the Applicants were bona fide purchasers for value without notice

Holding

They were not; they had notice of the nursery school reservation

Reasoning

As fourth purchasers they were given a copy of the grant whose condition No.5 expressly reserved the land for a nursery school, yet they proceeded to convert it to residential use. They cannot invoke section 14(7) protection.

p. 3

Legal principles established

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  • The National Land Commission's mandate under section 14 of the NLC Act extends to investigating how public land was converted to private land
  • A purchaser with notice of a reservation defect cannot claim the protection of section 14(7) of the NLC Act as a bona fide purchaser

Court orders

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  1. 1.The Ex-parte Applicants' Notice of Motion dated 26th April 2019 is dismissed
  2. 2.Costs to the interested party

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 10, 19, 20, 24, 25, 27, 28, 40, 47, 64, 67, 68(c)(v), 259
  • National Land Commission Actsections 14(1), 14(7)
  • Fair Administrative Action Act

Cases cited (3)

  • Republic Vs National Land Commission Ex-Parte Cecilia Chepkoech Leting & 3 Others
    (2016) eKLR
  • Republic Vs Chairman & Members of National Land Commission, Ex-parte Turf Developers Ltd
    (2016) eKLR
  • Constitutional Petition No. 530 of 2016 (Gichuru & Wairimu v Muthaiga North Residents Association & others)
Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court; contravention of Articles 2, 10, 19, 20, 24, 25, 27, 28, 40, 47, 64, 67 and 259 of the Constitution and the National Land Commission Act No. 5 of 2012 and Fair Administrative Action Act No. 4 of 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, "Republic National Land Commission & another Ex Parte Joseph Mungai Gichuru & another [2020] KEELC 1041 (KLR)", Case Analysis (2020). ELC JR 5 OF 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1041/eng@2020-10-08

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