Republic v National Land Commission & 2 others;Gaski Investments Limited (Interested Party) Ex parte George Gathuki Nganga [2020] KEELC 1178 (KLR)
The bottom line
#Kenya's High Court confirmed the National Land Commission can no longer review land grants, and mere advisory letters cannot be challenged through judicial review.
What this practically means
#Executive summary
#Key legal issues
#Whether the National Land Commission had jurisdiction to review the grant after the expiry of the five-year period under Section 14 of the National Land Commission Act
The Commission's mandate expired on 1st May 2017 and it had no jurisdiction to deal with the complaint; any decision would have been ultra vires and quashable
Section 14(1) of the National Land Commission Act required the Commission to review grants or dispositions of public land within five years of commencement of the Act. Both the Exparte Applicant and the 1st Respondent agreed that the mandate had lapsed by the time of the complaint and the impugned letter. The court held that any action taken thereafter was without jurisdiction and ultra vires, though the letter was ultimately found not to be a decision at all.
Whether the letter dated 11th July 2018 constituted a decision capable of being quashed by certiorari
The letter was not a decision but mere advice; certiorari and mandamus could not issue against it
The court perused the letter of 11th July 2018 and found it was written in response to a letter dated 16th May 2018 whose contents were unknown, and not in response to the Exparte Applicant's complaint dated 27th July 2017. The controversy to be settled was in the complaint; since the letter was not responsive to it, it did not constitute a decision settling a controversy, and consequently there was nothing to quash or vary and no unfair hearing could arise.
Whether the Exparte Applicant established the threshold for judicial review orders
Having found no decision existed, the Applicant failed to establish the threshold and the application was unmerited
Judicial review concerns the process of decision-making: illegality, irrationality and procedural impropriety. The court found the Applicant was questioning the process of the 1st Respondent, but since the impugned letter was not a decision, there was no process to impugn, and the Applicant was accorded an opportunity to be heard. The application was therefore dismissed with costs to the 1st Respondent and the Interested Party.
Legal principles established
#- The National Land Commission's mandate under Section 14 of the National Land Commission Act to review grants and dispositions of public land was limited to five years and expired on 1st May 2017
- A letter that is not a decision on a complaint does not amount to a reviewable decision for purposes of certiorari
Court orders
#- 1.Dismissal of the Judicial Review Notice of Motion dated 16th May 2019
- 2.Costs of the proceedings awarded to the 1st Respondent and the Interested Party
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court/Environment and Land Court over administrative bodies (orders of certiorari, mandamus and prohibition); Constitution Article 68(c)(v) and National Land Commission Act, Section 14 engaged
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Land Commission & 2 others;Gaski Investments Limited (Interested Party) Ex parte George Gathuki Nganga [2020] KEELC 1178 (KLR)", Case Analysis (2020). ELC Case No. 31 of 2018 (Formerly NRB Misc 152 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1178/eng@2020-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.